0001 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO 2 3 CAESAR C. DAILEY (E/O LILLIAN DAILEY), 4 Plaintiff, 5 VS CASE NUMBER: CV-07-629950 6 OHIO PERMANENTE MEDICAL 7 GROUP, INC., ET AL., 8 Defendants. ~~~~~~~~~~~~~~~~~~~~~~~~~~ 9 10 DEPOSITION OF 11 ROBERT McLELLAN, M.D. 12 January 14, 2009 10:47 a.m. 13 Marriott Hotel 14 8A Centennial Drive Peabody, Massachusetts 15 Susan A. Romano, Notary Public, Register Merit Reporter and Certified Realtime Reporter 16 within and for the Commonwealth of Massachusetts 17 18 19 20 21 22 23 24 25 0002 1 APPEARANCES: 2 . 3 ON BEHALF OF THE PLAINTIFF: 4 BECKER & MISHKIND CO., LPA 5 HOWARD D. MISHKIND, ESQUIRE 6 Skylight Office Tower 7 1660 West Second Street, Suite 660 8 Cleveland, Ohio 44113 9 216.241.2600 10 hmishkind@beckermishkind.com 11 . 12 ON BEHALF OF THE DEFENDANTS: 13 BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP 14 DIRK E. RIEMENSCHNEIDER, ESQUIRE 15 One Cleveland Center, Suite 1700 16 Cleveland, Ohio 44114 17 216.621.5300 18 driemenschneider@bdblaw.com 19 . 20 . 21 . 22 . 23 . 24 . 25 . 0003 1 STIPULATIONS 2 It is hereby stipulated by and 3 between counsel for the respective parties 4 that the sealing, certification and filing of 5 the deposition are waived; 6 That the deponent will read and 7 sign the deposition transcript within 30 days 8 of receipt thereof; 9 And that all objections, except as 10 to the form of the question, and all motions 11 to strike are reserved until the time of 12 trial. 13 . 14 . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 0004 1 Deposition of Robert McLellan, M.D. 2 January 14, 2009 3 PROCEEDINGS: 4 ROBERT McLELLAN, M.D., the 5 deponent, having been satisfactorily identified 6 and duly sworn by the Notary Public, was 7 examined and testified as follows: 8 EXAMINATION 9 BY-MR.RIEMENSCHNEIDER: 10 Q. Would you please state your name. 11 A. Robert McLellan. 12 Q. Doctor McLellan, my name's Dirk 13 Riemenschneider. We met a couple minutes 14 ago. I represent Kaiser Ohio Permanente in 15 this malpractice suit in which you've been 16 named as an expert on behalf of the 17 plaintiffs. I'll be asking you some 18 questions this morning. If I ask you a 19 question that doesn't make any sense or you 20 don't understand, please let me know that so 21 I can rephrase the question, okay? 22 A. Yes, sir. 23 Q. By the same token if you go ahead 24 and answer the question, it will be fair for 25 us to assume that you understood it. 0005 1 A. Yes, sir. 2 Q. All right. You've had your 3 deposition taken before. 4 A. Yes, sir. 5 Q. How many times? 6 A. My best estimate would be eight to 7 12 times. 8 Q. Okay. All medical malpractice 9 cases in which you've been named as an 10 expert? 11 A. There was -- Most of them have 12 been med-mal cases. 13 Q. Outside of the med-mal cases what 14 other type of a deposition has been taken? 15 A. There was one other deposition that 16 I provided after having done some consulting 17 work for a medical device manufacturer in a 18 subsequent lawsuit involving that manufacturer 19 and another company, brought me in as -- 20 essentially a witness. 21 Q. Okay. 22 A. Not an expert witness. 23 Q. The other seven, eight depositions 24 that you've given, did any of those have to 25 deal with a uterine sarcoma? 0006 1 A. I don't remember, sir. 2 Q. Out of the depositions that you've 3 given as you sit here today, you don't recall 4 any depositions that have any relevance to 5 this case. 6 A. No, sir. 7 Q. All right. Your current address 8 is where? 9 A. I'm at the Lahey Clinic which is 10 41 Mall Road, M-A-L-L, Burlington, 11 Massachusetts, 01805. 12 Q. And how long have you been at the 13 Lahey Clinic? 14 A. Twenty years this year, sir. 15 Q. And do you do any teaching? 16 A. Yes, sir. 17 Q. And who are you affiliated with as 18 a teacher? 19 A. Boston University School of 20 Medicine and Tufts School of Medicine. 21 Q. And what is your position at 22 Boston University? 23 A. I'm clinical professor of 24 obstetrics and gynecology. 25 Q. And how about Tufts? 0007 1 A. I believe I'm an associate 2 professor at Tufts. 3 Q. Are either of those paid positions? 4 A. No, sir. 5 Q. Voluntary positions on your part? 6 A. It comes along with the 7 relationship that the Lahey Clinic has with 8 both of those medical schools and has 9 inherent teaching responsibilities. 10 Q. Okay. And what type of teaching 11 do you do? With residents? 12 A. Primarily with residents, and to a 13 lesser extent with medical students and also 14 fellows. 15 Q. You don't teach any medical 16 classes, though, do you? 17 A. No, sir. 18 Q. It's all hands-on. 19 A. It's predominantly hands-on. 20 I'll also give lectures to 21 attending level gynecologists and doctors at a 22 variety of continuing medical education 23 courses. 24 Q. Have you lectured on uterine 25 sarcomas? 0008 1 A. I have, but more uterine cancers, 2 ovarian cancers and other cancers. 3 Q. As to the specific type of cancer 4 we have in this particular case, have you 5 taught or given lectures on this particular 6 cancer? 7 A. Yes. 8 Q. And how often do you do that? 9 A. Uterine sarcomas come up a number 10 of times in the day-to-day practice of a 11 gynecologic oncologist. 12 Q. All right. So per year -- How 13 about -- Do you remember the last time you 14 gave a lecture on uterine sarcomas? 15 A. Haven't given a lecture in the 16 last several weeks on uterine sarcomas 17 specifically. It's part of the sorts of 18 things I will teach residents. 19 Q. Okay. So when you talk about any 20 type of ovarian or uterine cancer, you might 21 talk a specific time about uterine sarcomas; 22 is that how it -- 23 A. Yes. Sure. 24 Q. Okay. Do you have a PowerPoint 25 that you focus on when you deal with this 0009 1 type of teaching? 2 A. That is amongst the modalities that 3 I'll use in teaching. My PowerPoint 4 presentations are primarily for presentations 5 I'll give in a continuing medical education 6 forum. 7 Much of another format of my 8 teaching is walking on rounds, seeing patients 9 with the residents and the fellows and 10 medical students in the operating room, in 11 teaching conferences such as morbidity and 12 mortality conference, and too, reports. 13 Q. What -- Regarding PowerPoints, is 14 there actual slides that you have that would 15 educate a physician, medical student, resident, 16 fellow on signs and symptoms of a uterine 17 sarcoma treatment options, that type of thing? 18 A. I -- I don't have a recollection 19 of a specific PowerPoint on that in my files. 20 Q. So if I asked you for something 21 like a subfile that you might keep on 22 that -- 23 A. I don't think I have one on that, 24 sir. 25 Q. All right. Would you check your 0010 1 PowerPoint -- 2 A. I'd be happy to. 3 Q. -- and your file; if you have 4 anything relevant to uterine sarcomas that you 5 teach? 6 A. Be happy to. And the reason I'm 7 hesitating is because I do give an annual 8 talk on uterine cancers, and that PowerPoint 9 is actually in public domain as far as I 10 know at the annual continuing education course 11 for OB/GYNs offered by Emory University every 12 May. 13 MR. MISHKIND: Dirk, if you follow 14 up with a letter to me -- 15 MR. RIEMENSCHNEIDER: Sure. 16 MR. MISHKIND: -- as a reminder, 17 then I'll get a hold of the doctor and see 18 if there's anything other than what he's 19 referenced in terms of being in the public 20 domain. 21 THE DEPONENT: I'm happy to shoot 22 that out to you. 23 BY MR. RIEMENSCHNEIDER: 24 Q. Now, you -- your practice is a 25 hundred percent GYN Oncology. 0011 1 A. No. 2 Q. How would you define your current 3 practice? 4 A. I would say my practice is a 5 combination of gynecologic oncology and 6 gynecology. Most of what I do professionally 7 is the clinical care of patients. 8 Q. Okay. Take me through a typical 9 week in your practice. 10 A. On Mondays I see patients in the 11 office and these are patients with either 12 problems which relate to gynecologic oncology 13 or general gynecology. 14 Tuesdays, I'm in the operating 15 room. 16 Wednesday mornings starts with a 17 weekly conference with the medical students, 18 residents and other attendings followed by 19 seeing patients in the office. Wednesday 20 afternoons are left for teaching and other 21 administrative responsibilities that I have. 22 Thursdays, I'm in the operating 23 room usually. On occasion I see patients in 24 one of the offices on Thursday morning. 25 On Fridays I am in the office 0012 1 seeing patients and also leave Fridays -- 2 parts of Fridays available for minor surgery. 3 Q. Do you -- Are you actually the 4 attending GYN for a number of patients that 5 you see, any -- you know, periodic calendar 6 basis, that don't have any oncology related 7 disease processes? 8 A. Yes, sir. 9 Q. How do you split that -- split 10 that up in your practice? 11 A. My practice -- Often a hospital 12 employee or a physician who wants gynecologic 13 care will come to me, a relative of a 14 physician will come to me for general 15 gynecologic care. 16 Q. What percent of your patient 17 population is -- sees you for general GYN 18 care? 19 A. I would say 10 percent. 20 Q. Okay. And has that been 21 consistent since you've finished your 22 fellowship and went into private practice? 23 A. It has decreased as the gynecologic 24 oncology needs. 25 Q. So has it been approximately 10 0013 1 percent the last five or ten years? 2 A. Yes, sir. Five to 10 percent. 3 Q. And the 10 percent of those 4 patients are either employees of the hospital 5 or other physician-related patients? 6 A. Or occasionally patients from the 7 community that made their way out to my 8 schedule. 9 Q. Are you still active in the Naval 10 Reserve? 11 A. Yes, sir. Actually, I'm in the 12 inactive -- 13 Q. Yeah. 14 A. -- civil IRR but I still have my 15 commission. 16 Q. And how long have you been a 17 member of the United States Naval? 18 A. Ten years, sir. 19 Q. What prompted your involvement with 20 the Navy? 21 A. My wife calls it my midlife 22 crisis. I always wanted to -- my dad was a 23 mustang in the Navy. He was active duty 42 24 years. My brother was in the Navy. My 25 mother was a Navy nurse in World War II. I 0014 1 grew up Navy. Never really had the 2 opportunity professionally to go into the Navy 3 kind of based on the things I wanted to do 4 between medical school, OB/GYN, fellowship, and 5 finally realized ten years ago that it was 6 now or never. 7 Q. So at that point you joined the 8 reserves; is that how -- 9 A. Yes, sir. 10 Q. How long were you active reserve? 11 A. Until two years ago. 12 Q. Okay. 13 A. Approximately. I had been 14 mobilized a couple of times during this last 15 ten years. The demands of the Navy reserve 16 unfortunately, because I miss it, really 17 started to conflict with both family life and 18 professional life. 19 Q. You -- Do you still hold your 20 license in New Hampshire? 21 A. Yes, sir. 22 Q. Now, you've -- you've written on 23 certain -- uterine sarcomas as well? 24 A. Yes, I have. 25 Q. Okay. And are those all 0015 1 documented in your bibliography on your CV? 2 A. I believe so, sir. 3 (Interruption). 4 BY MR. RIEMENSCHNEIDER: 5 Q. Do you -- Number 6 here, Review of 6 Uterine Sarcomas, was that ever printed to 7 your knowledge? 8 A. (Deponent viewing document). I'm 9 sorry. I can't remember. I can find out 10 for you. Happy to do that. 11 Q. All right. Will you do that? 12 A. Yes, sir. 13 Q. If it hasn't been printed, would 14 you have a copy of the actual article in 15 your -- 16 A. I would assume I would and I'd be 17 happy to find it. 18 MR. MISHKIND: And again, Dirk, if 19 you'd just shoot me a letter -- 20 MR. RIEMENSCHNEIDER: Sure. 21 MR. MISHKIND: -- I'll get the 22 material from the doctor, as opposed to you 23 sending it directly to him, it will go 24 through me and then -- in regards to the 25 care. 0016 1 THE DEPONENT: You got it. 2 MR. MISHKIND: Okay. What page 3 was that on the CV? 4 MR. RIEMENSCHNEIDER: That's Page 5 7. 6 MR. MISHKIND: Thanks. 7 MR. RIEMENSCHNEIDER: You know 8 what? It was actually Page 8 -- 9 MR. MISHKIND: Number 6. 10 MR. RIEMENSCHNEIDER: -- Number 6. 11 MR. MISHKIND: Thank you. 12 MR. RIEMENSCHNEIDER: And then on 13 Page 10, Number 28, I guess -- it might be 14 the same actually, abstract or text. 15 A. (Deponent viewing document). Looks 16 likes it's the same. I don't remember it, 17 but we'll certainly find it if it's there. 18 Q. And let me just hand you this real 19 quick and tell me if there's been any 20 additions or any other writings on your 21 bibliography or your CV. 22 A. (Deponent viewing document). 23 There were some -- at least one 24 abstract I believe presented at the New 25 England Association of Gynecologic Oncologists 0017 1 in 2008 that did not pertain to this 2 particular subject matter. But I can see 3 that the date of this CV is January of 2007. 4 Q. Nothing on -- Nothing to add to 5 that CV that would have any relevance to this 6 case. 7 A. Correct, sir. 8 Q. All right. 9 MR. RIEMENSCHNEIDER: I'm going to 10 go ahead and mark this as Exhibit 1. 11 THE DEPONENT: I'm going to get a 12 copy of that back, right? 13 MR. RIEMENSCHNEIDER: Absolutely. 14 THE DEPONENT: Thank you, sir. 15 MR. MISHKIND: But you're going to 16 actually get the original back. 17 THE DEPONENT: Okay, great. 18 MR. MISHKIND: We'll just 19 substitute a copy. 20 THE DEPONENT: Great. 21 MR. RIEMENSCHNEIDER: Do you want 22 some more water? 23 THE DEPONENT: I'm all set, thank 24 you. 25 MR. MISHKIND: Dirk? 0018 1 MR. RIEMENSCHNEIDER: I'm all 2 right, thank you. 3 (Discussion off the record). 4 (Exhibit-1, Handwritten Notes, 5 marked for identification). 6 BY MR. RIEMENSCHNEIDER: 7 Q. Doctor, I'm going to hand you 8 what's been marked as McLellan Number 1. 9 Could you please identify that. 10 A. (Deponent viewing documents). 11 These are notes that I've taken from the 12 medical records regarding this matter. 13 Q. Outside of Exhibit 1, do you have 14 any other notes that you wrote in this 15 particular case? 16 A. No, sir. 17 Q. We had filed a notice for you to 18 bring additional records, et cetera, to the 19 deposition. The only thing you brought with 20 you today was your report and the notes. 21 A. Yes. 22 Q. Okay. 23 A. I brought everything that I was 24 asked to bring. 25 Q. All right. So you -- 0019 1 MR. MISHKIND: In fairness, I did 2 not get apparently the notice to him, so he 3 brought his report and his notes. 4 MR. RIEMENSCHNEIDER: All right. 5 BY MR. RIEMENSCHNEIDER: 6 Q. The notes that you have, the 7 records that you have, do you have any 8 highlights or notes, notations on those 9 records? 10 A. There may have been an occasional 11 highlight, Mr. Riemenschneider, but -- 12 Q. What records? 13 A. -- nothing -- but nothing 14 substantive. I recall highlighting the 15 measurements of the uterus and uterine mass 16 and the ultrasound studies. 17 Q. What -- what medical records did 18 you review? 19 A. I've reviewed outpatient -- 20 Q. And if you need to look at your 21 note, go ahead -- 22 A. Thanks. 23 Q. -- or -- and letters or whatever. 24 A. I've reviewed medical records from 25 the outpatient department at Kaiser. 0020 1 MR. MISHKIND: Here's your original 2 -- the original letter that -- 3 THE DEPONENT: Thank you. 4 MR. MISHKIND: Sure. 5 BY MR. RIEMENSCHNEIDER: 6 Q. So you reviewed -- 7 A. From 1998 through 2006, autopsy 8 reports, the hospital reports when she was 9 hospitalized, radiographic and imaging studies. 10 Q. All right. So you reviewed the 11 Kaiser records, autopsy reports. Did you 12 review the Cleveland Clinic records? 13 A. I did, sir. 14 Q. Were those in total, or were they 15 just operative reports, or do you know? 16 A. I recall reading the operative 17 note, pathology report, several intensive care 18 entries, subsequent progress notes, but I 19 would -- I would make my best estimate that 20 it did not constitute the entire medical 21 record from the hospital. 22 Q. All right. Now, the -- You also 23 believe you looked at radiology reports -- 24 A. Yes, sir. 25 Q. -- from both -- well, I guess 0021 1 Kaiser and the clinic. 2 A. Yes, sir. 3 Q. Did you look at the actual 4 ultrasounds? 5 A. No, sir. 6 Q. Did you look at any of the CT 7 scans? 8 A. The scans themselves, no. I read 9 the reports. 10 Q. All right. You will not be 11 opining on an actual interpretation of the 12 ultrasounds or the CT scan then, right? 13 A. Correct, sir. 14 Q. You're relying upon the reports. 15 A. Yes, sir. 16 Q. Did you look at the pathology 17 slides? 18 A. I did not look at the slides, sir. 19 I looked at the pathology report, however. 20 Q. Do you have any specialized 21 training in GYN pathology? 22 A. As part of my fellowship and 23 residency we spent time with Doctor Woodruff 24 in the gynecologic pathology lab at Johns 25 Hopkins. I am however not board certified or 0022 1 have any specific recognized credentialed 2 expertise in pathology. 3 Q. Do you have any reason to disagree 4 with the interpretation of the pathology at 5 -- that Cleveland Clinic pathologists gave in 6 this case? 7 A. No, sir. 8 Q. Do you know Doctor Young? 9 A. I do. 10 Q. And how do you know Doctor Young? 11 A. He's a prominent gynecologic 12 pathologist in the Boston area. 13 Q. And have you had a professional 14 relationship in matters over the years? 15 A. Yes, I have. I have. 16 Q. Explain that to me, would you? 17 A. Well, if we want a second opinion 18 on slides, I -- on the interpretation of 19 slides, I'll often send them to Doctor Young. 20 I respect Doctor Young's opinion on these 21 matters a great deal. 22 Q. You had an opportunity to see his 23 report. 24 A. I did. 25 MR. MISHKIND: Reports actually. 0023 1 MR. RIEMENSCHNEIDER: Reports? 2 MR. MISHKIND: Right. 3 BY MR. RIEMENSCHNEIDER: 4 Q. Any reason to disagree with the 5 actual pathologic interpretation? 6 A. I have no reason to disagree with 7 Doctor Young's interpretation of the 8 histopathology. 9 Q. All right. As to the amount of 10 mitotic figures in the fields that he looked 11 at or anything like that, you don't disagree 12 with that. 13 A. Correct, sir. 14 Q. Have you had any other cases that 15 you've testified on behalf of any client of 16 Mr. Mishkind's law firm? 17 A. No, sir. 18 Q. It's the first time you met him; 19 today. 20 A. Yes, sir. In person. 21 Q. Do you know how he got your name? 22 A. I really don't. 23 Q. Have you advertised your services 24 as an expert? 25 A. No, sir. 0024 1 Q. Don't be offended by any of the 2 questions I ask you. It's just a matter of 3 habit, all right? 4 MR. MISHKIND: Don't be offended 5 yet by any of the questions. 6 A. Yes, sir. Thank you. 7 Q. You -- You've testified you said 8 seven or eight times at deposition. How many 9 cases in medical malpractice do you review 10 per year? 11 A. It's a very small part of my 12 practice. I may review three a year, four a 13 year, five a year. 14 Q. What percentage? 15 A. In that range. 16 Q. Defense versus plaintiff or is it 17 split down the middle? 18 A. The majority of my work is for the 19 defense. 20 MR. MISHKIND: Was it something I 21 said or is it just my -- 22 MR. RIEMENSCHNEIDER: You're -- 23 MR. MISHKIND: It's who I am. 24 MR. RIEMENSCHNEIDER: Your hourly 25 fee -- 0025 1 A. Ninety percent plus is for the 2 defense. About 95 percent. 3 Q. Do you know Doctor Barter? 4 A. I do. 5 Q. And how do you know Doctor Barter? 6 A. I've met Doctor Barter a number of 7 times at a variety of gynecology and 8 gynecologic meetings. I have high regard for 9 Doctor Barter both as a gynecologic oncologist 10 and as a friend, frankly. 11 Q. And Doctor Jamieson, do you know 12 Doctor -- 13 A. I don't know Doctor Jamieson, sir. 14 Q. Do you know any of the other 15 physicians that were involved in this case? 16 A. No, sir. 17 Q. Your fees to review are what per 18 hour? 19 A. Four hundred dollars per hour, sir. 20 Q. And then you charge $2400 flat fee 21 for deposition. 22 A. No, sir. I -- It depends upon 23 whether it's a half a day or a full day. A 24 half a day I call six hours. A full day I 25 call 12 hours. 0026 1 Q. Okay. So what is a half a day? 2 A. Six hours, $400 per hour, sir. 3 Q. So today for your deposition you're 4 -- you've charged me -- 5 A. Yes, sir. 6 Q. -- and I've paid you $2400. 7 A. Correct, sir. 8 Q. And what about your trial 9 testimony? 10 A. Same. Door-to-door $400 per hour. 11 Q. All right. So essentially you're 12 $400 per hour. 13 A. Yes, sir. 14 Q. Squarely. But if my deposition 15 takes two hours you still charge a half a 16 day. 17 A. Because I'm out of the office for 18 a half a day, sir. 19 Q. Did you review any literature in 20 preparation for your testimony today? 21 A. Yes, I have. 22 Q. And did you bring that with you 23 today? 24 A. No, sir. 25 Q. What did you review? 0027 1 A. I've read a number of articles 2 regarding uterine sarcomas over the last year. 3 But in particular this week, I reread Doctor 4 Soto's and my chapter on uterine sarcomas. I 5 read Trey Dinh's report and Arlen Fuller's 6 report of the Mass. General experience of 7 leiomyosarcomas. 8 MR. MISHKIND: Excuse me a minute, 9 do you need a spelling on any of these? 10 MR. RIEMENSCHNEIDER: Yes, I do. 11 BY MR. RIEMENSCHNEIDER: 12 Q. The chapter you taught -- 13 MR. MISHKIND: Hold on, sorry -- 14 (Reporter interruption). 15 MR. MISHKIND: Oh, okay, fine. 16 MR. RIEMENSCHNEIDER: Actually, 17 could you -- 18 BY MR. RIEMENSCHNEIDER: 19 Q. Let's go back to number one. You 20 reviewed your chapter. 21 A. My chapter. 22 Q. What was that? Chapter in a 23 textbook -- 24 A. And Horowitz's textbook, yes, sir. 25 And I reviewed Dinh, D-I-N-H, et al., a paper 0028 1 published in Gynecologic Oncology. 2 Q. When was that published? 3 A. I want to say 2003 but it's -- 4 and it's the -- it's the experience of 5 leiomyosarcomas at Massachusetts General 6 Hospital. I've reviewed Guintoli -- and I 7 can't spell her name -- at Mayo Clinic, the 8 Mayo Clinic experience. 9 Q. Is the first name Glynn? 10 A. No. I -- I don't know the first 11 name. The -- I'm happy to get all of this 12 for you of course. But it's Guintoli. I 13 want to say G-U-I-N-T-O-L-I, but I can't be 14 certain. Mayo Clinic report. Beth Gostout 15 is the senior author on that paper, 16 G-O-S-T-O-U-T, and that's the report of 17 leiomyosarcomas out of the Mayo Clinic. And 18 I read the -- 19 Q. When was the -- 20 MR. MISHKIND: Hold on, hold on, 21 hold on. Dirk, let him finish, please. 22 MR. RIEMENSCHNEIDER: Okay. 23 A. And the Mayo series also was 24 published in the last several years. I know 25 it begins with a 2 and a zero. 0029 1 Q. Okay. 2 A. And the last paper I read in the 3 last couple of days was the gynecologic 4 oncology group report of their experience with 5 leiomyosarcomas. 6 Q. Over at Mayo Clinic. 7 A. No, sir. It's the collaborative 8 group called the Gynecologic Oncology Group. 9 Q. Okay. 10 A. And I'm blocking a -- John Currie, 11 C-U-R-R-I-E, was one of the coauthors in that 12 manuscript. 13 Q. And when was that published? 14 A. Also within the last several years. 15 Maybe -- that may have been 2001, sir. 16 Q. So when you went to look at this 17 literature, did you do a MEDLINE search? 18 A. Yes, sir. 19 Q. And do you know what your query 20 was on that? 21 A. Leiomyosarcoma. Uterine 22 leiomyosarcoma. 23 Q. Besides those four articles, any 24 other literature that you looked at in coming 25 to your opinions in this case? 0030 1 A. I've looked at a number of other 2 articles. 3 Q. Do you have those articles? 4 A. No, sir. 5 Q. All right. Do the four articles 6 you just referenced me to, are those part and 7 parcel of your opinions in this case? 8 A. Yes, sir. 9 Q. Okay. Those are reliable -- 10 That's reliable literature in your opinion. 11 A. I believe it is, yes. 12 Q. And do you have copies of those 13 articles in a -- with your other records back 14 at your office? 15 A. Yes, sir. 16 Q. All right. So the records that 17 you have and you've listed, you had the 18 literature that you listed, those four 19 articles; any other articles that are laying 20 with your materials at home outside the four 21 you just listed to me? 22 A. It's possible, but I don't think 23 so. 24 Q. All right. You did not look at 25 the films. You have the reports of Doctor 0031 1 Barter, Doctor Young, Doctor Jamieson -- 2 A. Yes, sir. 3 Q. -- back in your file. 4 A. Yes, sir. I believe so. 5 Q. All right. Depositions that you 6 reviewed included -- I think you mention that 7 in your report here, Doctor James, Doctor 8 Grayson. 9 A. Evelyn James. Doctor Verghese, 10 Doctor Green. 11 Q. Doctor Shuffer? 12 A. Yes. Thank you. 13 Q. And Doctor Gibbs. 14 A. Yes. 15 Q. All right. 16 A. And Doctor Grayson. 17 Q. You were handed the family 18 depositions today. I'm assuming since you 19 just met with Mr. Mishkind you haven't had a 20 chance to read those. 21 A. Correct, sir. 22 Q. All right. Since the report that 23 you issued in this case, you haven't -- you 24 reviewed the -- Well, you were handed the 25 depositions of family, but you haven't been 0032 1 sent any further information; is that true? 2 MR. MISHKIND: Well, objection. 3 The reports from the experts were subsequent 4 to his report so -- 5 MR. RIEMENSCHNEIDER: Sure. 6 MR. MISHKIND: -- those were sent 7 to him just chronologically. 8 BY MR. RIEMENSCHNEIDER: 9 Q. Besides -- besides -- 10 MR. RIEMENSCHNEIDER: Right. 11 BY MR. RIEMENSCHNEIDER: 12 Q. -- the defense experts, after your 13 report, you haven't reviewed anything else. 14 A. Correct, sir. 15 Q. Okay. You were handed the 16 depositions of the plaintiffs today but you 17 haven't had a chance to review them. 18 A. Correct, sir. 19 Q. All right. Have you come to any 20 new opinions since you issued your report in 21 this case? 22 A. No, sir. 23 Q. All right. Your report is 24 dated -- 25 A. (Deponent viewing document). July 0033 1 15, 2008, sir. 2 Q. And is that the only draft of that 3 report? 4 A. That's correct, sir. 5 Q. Did you have a previous draft of 6 that report, and were there any changes made 7 after your initial draft? 8 A. I wrote this report and probably 9 made some editorial corrections or grammatical 10 corrections. 11 Q. And your report includes all your 12 opinions in this matter. 13 A. I can't say with certainty that it 14 includes every single opinion I have regarding 15 this matter, no, sir. But it includes the 16 sum and substance of it. 17 Q. Okay. And you haven't changed any 18 of those opinions since -- 19 A. Correct, sir. 20 Q. -- July of 2008. 21 A. Yes, sir. 22 Q. Okay. You received a number of 23 letters from plaintiff's counsel. He handed 24 those to me from his -- 25 MR. MISHKIND: From my file. 0034 1 BY MR. RIEMENSCHNEIDER: 2 Q. His file. Do you have -- If you 3 could take a look at those. 4 MR. MISHKIND: I can -- Before I 5 hand them to him, I can't attest to the fact 6 that this is the extent of it, because 7 sometimes copies get put into files sometimes 8 into correspondence. But I pulled them out 9 of what I had in Doctor McLellan's file. 10 MR. RIEMENSCHNEIDER: All right. 11 MR. MISHKIND: So I'll let him 12 take a look at those and... 13 BY MR. RIEMENSCHNEIDER: 14 Q. Why don't you go ahead and take a 15 look at those and tell me if you remember 16 any other information forthcoming from 17 plaintiff's counsel. 18 A. (Deponent viewing document). 19 MR. MISHKIND: Dirk, while he's 20 doing that, on the record, the reason I say 21 that is because I don't see cover letters for 22 all of the expert reports but I know that 23 they were either faxed to him or sent under 24 separate cover, so... 25 A. (Deponent viewing document). This 0035 1 is all of it to the best of my recollection, 2 sir. 3 Q. Okay. Did you review any 4 summaries of depositions or any summaries from 5 plaintiff's counsel? 6 A. No, sir, not that I recall. 7 Q. Do you remember getting any other 8 information that we haven't talked about from 9 plaintiff's counsel in written form? 10 A. Medical records, depositions, 11 defense expert reports, supplement -- one 12 supplement to those reports is all I -- that 13 I recall. 14 Q. All right. And the medical 15 literature that you pulled, did you send 16 copies of that literature to Mr. Mishkind? 17 A. I don't remember. 18 Q. All right. Did you receive any 19 type of menstrual calendar from -- that Mrs. 20 Dailey had? 21 A. No, sir. Not to my knowledge. 22 Q. Is there any information that you 23 requested that you have not received? 24 A. Not that I recall, sir. 25 Q. Do you have any, like subspecialty 0036 1 in ultrasounds of the uterus? 2 A. Have I been trained to -- 3 Q. Right? 4 A. -- interpret ultrasounds? No, sir. 5 Q. Okay. 6 A. And I assume you're referring to 7 interpreting the films themselves. 8 Q. Right. I was just curious if 9 you -- 10 A. Credentially, no, sir. 11 Q. All right. Do you know what your 12 charges up until today have been to 13 plaintiff's counsel? 14 A. Not off the top of my head, sir. 15 Q. Do you have bills that you've 16 submitted to him back in your file? 17 A. I'm sure my secretary has bills. 18 Q. Okay. How often have you had 19 Doctor Young look at pathology for a second 20 opinion? 21 A. It wouldn't surprise me that we 22 use him several times annually. 23 Q. Okay. 24 A. We use him frequently. He's one 25 of several that we use but we use him 0037 1 frequently. 2 Q. Who is the pathologist at the 3 Lahey Clinic that you deal with typically in 4 GYN Oncology? 5 A. I deal with several of them 6 including Doctor Mark Silverman, Christine 7 Thomas, John Dugan, D-U-G-A-N. 8 Q. And if -- 9 A. Doctor Bai, B-A-I. 10 Q. And if there's a need for a second 11 opinion Doctor Young would be one of the 12 experts in the field in this area that 13 you -- 14 A. Yes, sir. 15 Q. Do you know the GYN pathologists 16 or the pathologists that interpreted the 17 pathology at the Cleveland Clinic? 18 A. I don't recall the names, sir, so 19 I'd have to say I don't know. 20 Q. Okay. Doctor Jennifer Brainard? 21 Does that ring a bell with you? 22 A. Yeah. That does somehow sound 23 familiar, but I can't say for sure. 24 Q. Okay. Have you -- have you ever 25 lectured, given grand rounds or anything in 0038 1 Ohio? 2 A. No, sir. To my knowledge -- Yes, 3 sir. 4 Q. You have? 5 A. I have. 6 Q. Where was that? 7 A. I gave a couple of talks in 8 Dayton, Ohio. 9 Q. How -- When was that? 10 A. That must have been 17 or 18 years 11 ago, sir. 12 Q. Why don't you give me a 13 understanding of what you think the facts of 14 this case are. 15 MR. MISHKIND: Before the doctor 16 answers, I'm going to object to the general 17 nature of the question and facts of the case. 18 He could really lecture for a long period of 19 time. I think -- I'm going to object in 20 terms of the scope of the question. I'll 21 let him answer the question but I think it's 22 overly broad as it relates to, quote, the 23 facts. 24 But go ahead, Doctor. 25 A. (Deponent viewing document). Well, 0039 1 the facts of the case, as I understand them 2 from my record review, suggest that on 3 October 8, 2004, the patient is 55 years of 4 age and is seen by Evelyn James, a nurse 5 practitioner for a well woman exam. 6 The patient reports at that time 7 that she had not had a period, or a 8 menstrual period for over six months, that 9 she had hot flashes. She was 245 pounds. 10 At that time, it was the clinical impression 11 of Evelyn James that the patient had an 12 enlarged uterus. 13 She ordered an ultrasound which 14 confirmed the presence of an enlarged uterus 15 measuring 12.7 by 9.5 by 10.2 centimeters. 16 The ultrasound commented that there was a 17 large fibroid on the posterior wall which 18 measured 5.4 centimeters. The endometrial 19 stripe or thickness was enlarged at 9 20 millimeters. The patient was advised to see 21 a gynecologist for evaluation. 22 The patient -- The next important 23 fact to me was that -- was her encounter 24 with Doctor Verghese, V-E-R-G-H-E-S-E, on May 25 4, 2005 -- 0040 1 (Interruption). 2 THE DEPONENT: Bless you. 3 MR. MISHKIND: Excuse me. 4 THE DEPONENT: Bless you. 5 A. At which time the patient was now 6 three-and-a-half months short of turning 56 7 years of age and reported having had abnormal 8 vaginal bleeding every day for five months; 9 sometimes light, sometimes heavy. 10 The patient had no pain or other 11 symptoms of advanced disease documented in 12 that note. An endometrial biopsy was 13 performed and interpreted as inactive 14 endometrium. A Pipelle biopsy device, 15 P-I-P-E-L-L-E, was used to obtain the 16 endometrial biopsy. An ultrasound was ordered 17 and performed on May 20, 2005, at which time 18 the uterus was shown to have significantly 19 enlarged in size. The uterus now measured 20 14.8 by 10.9 by 9.7 centimeters. 21 The patient had been placed on 22 Provera in early May and was seen again on 23 June 15, 2005, by Doctor Verghese who 24 reviewed the ultrasound including a comment in 25 the ultrasound that the, quote, largest area 0041 1 of variable echogenicity measured 10.7 2 centimeters, unquote. 3 Doctor Verghese observed that the 4 patient continued bleeding, recommended that 5 the patient continue cyclic Provera and asked 6 her to return in four to six months. 7 The patient presented in October of 8 2005, now having experienced pelvic and 9 abdominal pain on a pain scale score of 9 10 out of 10, she reports, was seen by Doctor 11 Green. Subsequent imaging studies, CAT scan 12 reveal a markedly enlarged -- further enlarged 13 uterus measuring 17.7 by 14.4 by 15.5. A 14 vaginal ultrasound as had been previously 15 performed could no longer be performed because 16 of pain. 17 The patient was treated with 18 Depo-Lupron L-U-P-R-O-N, by Doctor Green but 19 ultimately was seen by Doctor Shuffer I 20 believe in December of 2005 at which time the 21 potential for a malignant process was 22 entertained. 23 The patient was referred to I 24 believe it was Doctor Michener at Cleveland 25 Clinic where the patient ultimately underwent 0042 1 an exploratory laparotomy, T-A-H-B-S-O, and 2 debulking, D-E-B-U-L-K-I-N-G, at the Cleveland 3 Clinic Foundation on January 5, 2006. At 4 that time an advanced metastatic 5 undifferentiated leiomyosarcoma was identified. 6 The patient within a matter of 7 weeks had a fatal tumor embolus and expired 8 from her disease in January of 2006. 9 MR. MISHKIND: Excuse me. 10 A. That is my synopsis of the most 11 important facts as I've identified them. 12 Q. Appreciate that. 13 Now, you have -- You mentioned in 14 your report that you believe that the 15 standard of care required that a hysterectomy 16 be performed in May and June of '05. 17 A. Yes, sir. 18 Q. Okay. Just so we're clear, that 19 your -- so your first criticism we're dealing 20 with regarding the deviation from standard of 21 care stems from Doctor Verghese's care in May 22 or June of '05. 23 A. Well, I'm concerned that she had 24 an abnormal ultrasound and had been advised 25 to see a gynecologist as early as October of 0043 1 2004. I don't know what happened with the 2 process of her getting in to see a 3 gynecologist, but the patient clearly began 4 bleeding as she reports in December of 2004 5 and then bleeds every single day until May 6 when the patient sees Doctor Verghese. 7 Q. Well, so we're clear, however, the 8 -- in your opinion, to a medical probability, 9 the standard of care in this case at the 10 latest required a hysterectomy sometime -- or 11 at the earliest, I should say, required a 12 hysterectomy sometime in May, June of '05? 13 A. Yes, sir. 14 MR. MISHKIND: Objection. 15 That's okay. 16 BY MR. RIEMENSCHNEIDER: 17 Q. And the basis of that opinion that 18 sometime in May, June of '05 the standard of 19 care required a hysterectomy is what? 20 A. My view on this case is that in 21 May of 2005 we have a woman that's almost 56 22 years of age with daily abnormal vaginal 23 bleeding for five months and imaging studies 24 clearly demonstrating an enlarging uterine 25 mass. And a woman of that age with abnormal 0044 1 bleeding and an enlarged uterine mass, in my 2 view, even in the presence of a normal -- of 3 an endometrial biopsy revealing inactive 4 endometrium, warrants a hysterectomy to rule 5 out a malignant process. 6 I believe that in May and June was 7 the window of opportunity where intervention 8 may have substantially improved this patient's 9 survival. 10 I would acknowledge that this is a 11 very aggressive cancer, and you know, I'm on 12 record in my own -- some of my own writings 13 as saying that this is a very aggressive 14 cancer, and even in patients with so-called 15 clinical Stage I leiomyosarcomas, as many as 16 half of them will recur and succumb to their 17 disease. 18 But in May and June of 2005 there 19 was no radiographic or imaging evidence, no 20 clinical evidence of cancer having spread, and 21 I believe that intervention in this window of 22 time at least would give this patient the 23 possibility of survival; certainly an improved 24 outcome from the hysterectomy itself and a 25 chance of survival including long-term 0045 1 survival. That's how I've arrived at my 2 opinion on this matter. 3 Q. You mentioned that these are highly 4 aggressive tumors in general. 5 A. Yes, sir. 6 Q. Obviously the cellular makeup of 7 these type of tumors differs; some are more 8 aggressive than others, correct? 9 A. Yes, sir. 10 Q. Just basing this on the pathology 11 seen at the Cleveland Clinic, this was one of 12 the most type of aggressive type of uterine 13 sarcomas, correct? 14 A. This is a very aggressive uterine 15 sarcoma, yes, sir. 16 Q. You mentioned patients even with a 17 Stage I -- Go ahead. 18 A. Clinical Stage I. 19 Q. Clinical Stage I, have less than 20 50 percent five-year survival, correct? 21 A. They can have up to approaching 50 22 percent five-year long-term survival. 23 Q. Okay. I'm looking at your chapter 24 here and I'm looking at these key points. 25 A. Yes, sir. 0046 1 Q. Where it says "Patients with Stage 2 I uterine sarcoma have less than 50 percent 3 five-year survival"; do you agree with that? 4 A. May I see it? 5 Q. Sure. 6 A. (Deponent viewing document). I 7 would agree with that, yes, sir. Thank you. 8 Q. Thank you. Do you -- Are you 9 able to stage to a reasonable degree of 10 medical certainty what her cancer was in May, 11 June of '05? 12 A. To be a purist, sarcomas are not 13 formally staged. 14 Q. Right. 15 A. However, I believe that there was 16 no evidence by imaging studies or clinical 17 evidence to suggest that the cancer had 18 spread beyond the uterus in May and June of 19 2005. 20 I would acknowledge that the cancer 21 may have metastasized beyond the uterus, but 22 we cannot say with 100-percent certainty, nor 23 can any other expert say with 100-percent 24 certainty, that in the absence of evidence of 25 metastatic disease the cancer had spread. 0047 1 I believe that there is sufficient 2 evidence to suggest that the cancer may have 3 been confined to the uterus that warranted 4 intervention to exclude the potential for a 5 life-threatening malignancy. 6 Q. Okay. What evidence would you see 7 radiologically that we don't have in this 8 case that would tell you whether or not that 9 it was spread outside the uterus? 10 A. A mass, ascites, bowel obstruction 11 are examples of imaging observations that 12 would support metastatic disease. 13 Q. Were any images taken in May, June 14 of '05 that either -- that would have -- 15 that didn't show that those were present? 16 A. The imaging study I saw was the 17 ultrasound -- 18 Q. Right. 19 A. -- which showed no evidence of 20 metastatic disease. Acknowledging -- This is 21 Bob McLellan acknowledging that microscopic 22 metastatic disease may still have been present 23 but we will never know for sure. 24 Q. Sure. I mean, that's a common 25 type of way these type of cancers spread, 0048 1 correct? 2 MR. MISHKIND: Objection. 3 But go ahead. 4 A. The majority of leiomyosarcomas 5 will spread in -- via the bloodstream. 6 Q. Right. And one of the first 7 places they go to is where? 8 A. The lungs. 9 Q. Okay. 10 A. Amongst other places. 11 Q. The CT scan that was ultimately 12 taken in October showed a lesion in the lung. 13 A. It showed a nodule in the base of 14 one of the lungs, yes, sir. 15 Q. Do you think to a medical 16 probability more likely than not that was 17 spread of a uterine sarcoma? 18 A. I think so. 19 Q. As to how long that had been 20 present in the lungs you can't say to a 21 reasonable degree of medical certainty, 22 correct? 23 A. Correct, sir. 24 Q. All right. The -- You also 25 mentioned clinically you didn't see any 0049 1 findings that it spread outside the uterus 2 back in either May or June of '05. 3 A. Correct, sir. 4 Q. What would you need to see 5 clinically that would -- way you would favor 6 that there had been some spread outside -- 7 out of the uterus? 8 A. Pain was a common finding in 9 patients where the cancer has become advanced 10 and has become involving surrounding 11 structures. 12 Q. Anything else clinically? 13 A. The presence of ascites, cough, 14 bowel obstruction. 15 Q. Those type of findings are 16 significant for advanced stage disease. 17 A. They may -- they may reflect 18 metastatic or advanced disease, yes, sir. 19 Q. CT scan, I believe in '05, also 20 showed in enlargement of the lymph nodes in 21 the iliac chain. 22 A. (Deponent viewing document). I 23 don't recall that specifically but if you 24 tell me it says that I would of course 25 accept that, sir. 0050 1 MR. MISHKIND: Do you want to show 2 it to him? It will be quicker. 3 BY MR. RIEMENSCHNEIDER: 4 Q. It's at the bottom highlighted. 5 A. Thank you, sir. 6 (Deponent viewing document). The 7 CT scan dated October 25, 2005, on Lillian 8 Dailey reports several mildly prominent right 9 internal iliac chain lymph nodes. 10 Q. Do those have any significance to 11 you in your opinions in this case? 12 A. It does not influence my opinion 13 in this case, no, sir. 14 Q. Do you think those probably are 15 from metastatic spread of the cancer? 16 A. It's really difficult to tell. 17 Q. Okay. 18 A. Leiomyosarcomas tend not to go to 19 lymph nodes as often as other malignancies 20 will. 21 Q. All right. So as to the 22 enlargement of the right internal iliac chain 23 lymph nodes being due to metastatic spread of 24 the uterus sarcoma, is it fair to say you 25 don't have an opinion either way on that? 0051 1 A. Correct. I'm not able to say with 2 any reasonable degree of probability whether 3 they contained cancer or not. 4 Q. Okay. Now, she did have fibroids, 5 in your opinion. 6 A. I believe that she did, yes, sir. 7 Q. Okay. Fibroids are prominent in 8 50-year old African-American females. 9 A. Very. 10 Q. What percent would you say? 11 A. One in three women her age will 12 have a leiomyomata or fibroids. 13 Q. And those can cause irregular 14 uterine bleeding. 15 A. They may, yes. 16 Q. In both premenopausal, 17 perimenopausal and postmenopausal patients. 18 A. No, sir. They would not cause 19 bleeding in postmenopausal patients and should 20 be reducing in size spontaneously in 21 postmenopausal patients. 22 Q. And perimenopausal patients, you 23 can have uterine fibroids that have continuous 24 bleeding, correct? 25 A. That's correct. 0052 1 Q. How do you define menopause? 2 A. There's a -- there's a very 3 specific definition of the word menopause in 4 the medical literature and that is to be 5 without a period for one year; without a 6 menses for one year. 7 This is to be distinguished from 8 that patient who is having vaginal bleeding 9 but the vaginal bleeding is not secondary to 10 normal hormonal fluctuations from the ovary, 11 but instead is due to an abnormal pathologic 12 process which may also then bleed and 13 contribute to abnormal vaginal bleeding. 14 Gynecologists are commonly trained 15 that one must be very circumspect about women 16 over the age of 55 who report that they are 17 having periods because, in fact, it may not 18 be withdrawal bleeding from normal ovarian 19 hormonal fluctuations and may be due to a 20 pathologic process. 21 In this patient I am very 22 concerned that with an average age of 23 menopause 51 to 52, she is now 55 in the 24 fall of 2004 and reports many of the signs 25 and symptoms suggesting that her ovaries are 0053 1 no longer functioning. 2 Using the term menopause loosely, 3 that would be consistent with a postmenopausal 4 status or a post climacteric status; no 5 bleeding for over six months, she's having 6 hot flashes. 7 When she ultimately undergoes an 8 endometrial biopsy in May of 2005, the 9 endometrium is described as inactive, 10 supporting the view that no significant 11 hormonal stimulation was having an effect on 12 the endometrium and the patient describes 13 daily vaginal bleeding for five months, 14 beginning of December 2004. 15 That cannot, in my view, be 16 characterized as menses or perimenopausal 17 bleeding. That is clearly abnormal bleeding 18 in a woman who is turning 56 in a matter of 19 months. Coupling that with an enlarging 20 uterine mass in someone of that age is very 21 worrisome for a malignancy in the uterus. 22 Q. You mentioned that the majority of 23 patients go through menopause at what, 51, 24 52? 25 A. The average age of menopause is 0054 1 51, 52, sir. 2 Q. What's the curve of the 53, 54, 3 55, what percent of those patients -- 4 MR. MISHKIND: Standard deviation. 5 A. I mean, I -- I can't remember 6 where I read it. It may have been in Doctor 7 Verghese's deposition. I would agree with 8 her when she said 45 to 55 is sort of a 9 reasonable bell curve to put around. 10 Q. So the age of this patient per se 11 doesn't exclude her from being perimenopausal, 12 correct? Just on the higher end of patient 13 going through menopause. 14 A. It does not exclude her from being 15 perimenopausal. But to this observer, 16 abnormal vaginal bleeding and an enlarging 17 uterine mass in someone of this age has to 18 be assumed -- should be -- cause significant 19 concern for a potential life-threatening 20 malignancy in the uterus. 21 Q. What are the -- In a 22 postmenopausal patients what are the causes of 23 uterine bleeding? 24 A. Postmenopausal bleeding can have 25 atrophic vaginitis, polyps, premalignant 0055 1 conditions in the uterus including endometrial 2 hyperplasia. And a variety of malignancies 3 involving the urogenital tract. 4 Q. And in a patient perimenopausal, 5 what are the causes of vaginal bleeding that 6 might be slight on some days and heavier on 7 other days? 8 A. A peri -- I'm sorry. Could you 9 repeat your question please, sir? 10 Q. Sure. In a perimenopausal patient, 11 what are the causes of abnormal uterine 12 bleeding that might be described as to how 13 she was describing in this particular case? 14 A. Abnormal uterine bleeding in 15 perimenopausal women may be secondary to 16 uterine fibroids, polyps, hyperplasia, 17 H-Y-P-E-R-P-L-A-S-I-A, as well as malignancies 18 in the urogenital tract and horn ovarian 19 dysfunction. 20 Q. In a patient who is perimenopausal 21 and who is having abnormal uterine bleeding 22 you say daily for five months, may be slight, 23 may be heavy, would a first reasonable step 24 be to take an endometrial biopsy? 25 A. Yes. A woman with abnormal 0056 1 bleeding that's perimenopausal, or suspicious 2 for being postmenopausal, an endometrial biopsy 3 is an important step. 4 Q. And why is that? 5 A. To rule out a malignant or 6 premalignant process in the lining of the 7 endometrial cavity. 8 Q. Patients that age, perimenopausal 9 or postmenopausal, what percentage of the 10 uterine cancers are in the endometrial lining? 11 A. The majority of them, sir. 12 Q. Fifty-one percent or is it greater 13 than 90 percent? 14 A. Greater than 90 percent. Thank 15 you. 16 Q. Do you have an opinion when Mrs. 17 Dailey's last menstrual period was? 18 A. (Deponent viewing document). Yes, 19 sir. 20 Q. And when was that? 21 A. At least six months prior to 22 October of 2004. 23 Q. So you saw -- Did you see in one 24 record where she said her last menstrual 25 period was in June of '04 where she actually 0057 1 gave that date? 2 A. I recall -- I recalled something 3 to that effect, but my memory is more 4 reliable on remembering that at least six 5 months no bleeding. 6 Q. Doctor Verghese's note. 7 A. Yes, sir. 8 Q. Okay. 9 A. No. Emily James's note, sir. 10 Then Doctor Verghese also commented on that. 11 Q. Assuming that her last menstrual 12 period was June of '04 and the other bleeding 13 that she had was due to some other underlying 14 issue going on, she wouldn't be defined as 15 postmenopausal until when? 16 A. If one goes with the very narrow 17 and very specific definition regarding 18 menopause that refers to cessation of menses 19 for one year or longer. 20 In this observer's opinion I 21 believe that the bleeding that she was having 22 beginning in December of 2004 is related to 23 -- not to ovarian function; that for all 24 intents and purposes, using the term menopause 25 the way we casually use it when we talk 0058 1 about women that are gone beyond the point of 2 ovarian function, I believe that using the 3 term in that context, this patient is 4 postmenopausal or beyond ovarian function and 5 her bleeding, beginning in December of 2004, 6 was related to her pathology; her 7 leiomyosarcoma. 8 Q. Okay. So the signing -- or the 9 sign of her bleeding started in December of 10 '04 in your opinion to a medical probability 11 was due to her uterine sarcoma. 12 A. I believe so, yes, sir. 13 Q. If we go by the strict definition 14 of one year after your last menstrual period, 15 let's just forego any bleeding outside of 16 that issue, then she wouldn't be postmenopause 17 until I guess June of '05. 18 MR. MISHKIND: Let me object to 19 the question, but go ahead and answer. 20 A. For purposes of this discussion, I 21 believe this patient had gone beyond any 22 ovarian function in using the term 23 postmenopausal. As is casually used in 24 day-to-day discourse, I would consider her 25 postmenopausal. 0059 1 Q. At what point? 2 A. I believe in December she no 3 longer has ovarian function. 4 Q. All right. Would it be reasonable 5 for a physician to characterize her in 6 December of '04 as perimenopausal? 7 MR. MISHKIND: Objection. 8 BY MR. RIEMENSCHNEIDER: 9 Q. With the history that her last 10 menstrual period was in June of '04? 11 MR. MISHKIND: Objection. 12 Go ahead. 13 A. Help me -- 'Cuz I'm not -- Could 14 you repeat it one more time? What was the 15 date? 16 Q. Sure. Would it be reasonable for 17 a physician to characterize this patient as 18 perimenopausal, let's say June of '04 through 19 May of '05 based upon the fact that her last 20 menstrual cycle was in June of '04? 21 MR. MISHKIND: Objection. 22 Go ahead, please. 23 A. On September 1, 2004, this patient 24 turned 55, was having hot flashes, had not 25 had periods for several months. I believe 0060 1 one cannot assume this patient is 2 perimenopausal. I think that that's an 3 unreasonable impression at that time and a 4 dangerous assumption. 5 Q. And when you talk about vasomotor 6 type of complaints in your report, you're 7 talking about the -- or vasomotor symptoms, I 8 think you put in your report you're talking 9 about the hot flashes. 10 A. Yes, sir. 11 Q. Hot flashes can be seen in 12 patients going through perimenopause. 13 A. Yes, sir. 14 Q. It can also be patients who are 15 postmenopausal. 16 A. Yes, sir. But one would be -- 17 one would much more comfortably, and I 18 believe accurately assume a 51-year old have 19 occasional periods and hot flashes is more 20 likely to be perimenopausal than a woman 21 55-1/2 having hot flashes, no periods for six 22 months and then begins having daily vaginal 23 bleeding. Those two scenarios are very, very 24 different to qualified practicing 25 gynecologists. 0061 1 Q. All right. So going to Doctor 2 Verghese's care in May and June of '05, was 3 it reasonable for her to do the endometrial 4 biopsy? 5 A. Yes, sir. 6 Q. Okay. You're not critical of the 7 pathologic read of the endometrial biopsy, are 8 you? 9 A. No, sir. 10 Q. You're not critical of her doing 11 it in the office. 12 A. No, sir. 13 Q. Those typically have a 98 percent, 14 plus or minus couple, percent accuracy rate 15 in endometrial pathology. 16 A. There are varying reports in the 17 literature on it, but the -- the one that is 18 often accepted is a 91, 90-percent accuracy. 19 Q. And if this were -- if we were 20 dealing with a patient who's perimenopausal -- 21 I just want you to assume that hypothetical 22 in this particular instance, that she's comes 23 in to see Doctor Verghese, she takes the 24 history, does an endometrial biopsy, everything 25 up to that would be reasonable. 0062 1 A. Yes, sir. 2 MR. MISHKIND: Objection. 3 BY MR. RIEMENSCHNEIDER: 4 Q. Assuming that an endometrial biopsy 5 is negative and the patient has a history of 6 fibroids, would it be reasonable to treat her 7 with the progesterone therapy? 8 MR. MISHKIND: Objection. 9 Go ahead. 10 A. I would need more information 11 before I could answer your question, sir, 12 respectfully stated. 13 Q. Okay. What -- 14 A. I -- I can -- For instance, the 15 age of a patient, the other risk factors a 16 patient may or may not have. 17 Q. In some particular patient assuming 18 she's perimenopausal, a history of fibroids 19 and has a negative endometrial biopsy by 20 Doctor Verghese, would it be reasonable at 21 that time to try her on a conservative 22 approach with progesterone therapy? 23 A. I do not -- 24 MR. MISHKIND: Same objection. 25 Go ahead, Doctor. 0063 1 A. I do not believe so. I think 2 that it's just an assumption that this woman 3 who is turning 56 in a matter of months and 4 who is having abnormal vaginal bleeding, hot 5 flashes a significant period of time the 6 prior year with no bleeding whatsoever, 7 inactive endometrium on biopsy and an 8 enlarging uterine mass, it is not a 9 reasonable assumption to treat her with 10 Provera. 11 Q. Fibroids enlarge, correct? 12 A. In premenopausal women, yes, sir. 13 Q. They also enlarge in 14 perimenopausal. 15 A. Not usually. 16 Q. Not usually? 17 A. Some do, some don't. 18 Q. Okay. 19 A. But they certainly do not in 20 postmenopausal women. 21 Q. All right. Perimenopausal patients 22 can have fibroids that enlarge, correct? 23 A. They may. We see it more commonly 24 in premenopausal women where the fibroids 25 enlarge. 0064 1 Q. You mention in your writings that 2 -- Well, strike that. 3 What is your -- How do you define 4 rapidly increasing in size? Because it 5 varies, I think. 6 A. I believe I've seen it written 30 7 to 50 percent enlargement over a matter of 8 six months. 9 Q. Is that what the -- Is that the 10 definition you go by? 11 A. I think it would be an acceptable 12 definition to me, sir. 13 Q. In how many months? Thirty to 50 14 percent in how many months? 15 A. Five to six months. 16 Q. Any other definition that's 17 utilized in your profession on rapid growth? 18 A. I would be concerned about a 19 patient having measurable reliably -- reliably 20 measured growth after ovarian function had 21 ceased. When gynecologists use the term 22 fibroid, in the absence of tissue, it is an 23 assumption they are making in a very common 24 process -- 25 (Interruption). 0065 1 A. I'm sorry. Where was I? 2 Q. You were talking about rapid growth 3 after ovarian function stopped. 4 A. Yeah, I think that if there's a 5 reliable measurement of increased -- 6 significantly increased size in a patient who 7 we believe is beyond ovarian function, then 8 that is very concerning for tumor growth. 9 Q. Does the endometrial stripe that 10 was seen in the ultrasound have any bearings 11 on your opinion in this case? 12 A. Only insofar as I agree with 13 Evelyn James, that she should have been seen 14 in gynecology following that November encounter 15 or October encounter of 2004. 16 Q. And do you know why the patient 17 didn't come back to see her? 18 A. No, sir. 19 Q. If she was instructed to make an 20 appointment with a GYN and didn't, are you 21 critical of her? 22 MR. MISHKIND: Objection. 23 Go ahead. 24 A. It would depend on the 25 circumstances. 0066 1 Q. In what way? 2 MR. MISHKIND: Let me just show an 3 objection because it calls for facts not in 4 evidence. 5 But go ahead. 6 A. I don't know the circumstances 7 which would lead to a patient not following 8 recommendations that she see a gynecologist. 9 Q. You saw Evelyn James's deposition, 10 right? 11 A. Yes. 12 Q. And she had testified that she had 13 discussed with Evelyn James the need to make 14 a follow-up appointment with a GYN. 15 A. I -- 16 MR. MISHKIND: Objection. 17 A. I recall that, yes. 18 Q. All right. Assuming that took 19 place and the patient waited until April or 20 May to follow up on that ultrasound, are you 21 -- I'm just asking you, are you critical of 22 the patient in this particular scenario? 23 MR. MISHKIND: Objection. 24 A. Not without knowing the 25 circumstances. 0067 1 Q. Okay. The same token, are you 2 going to be lodging any criticisms at the 3 time of the trial in this case that there 4 was any deviation from the standard of care 5 up until the time that the patient saw Doctor 6 Verghese? 7 A. I will not be critical of any time 8 -- of the care prior to Doctor Verghese's 9 encounter in May. 10 Q. All right. 11 A. Reserving the right, if additional 12 information is provided, to change my opinion 13 on that matter. 14 Q. But you've had an opportunity to 15 read all of the depositions of the 16 physicians, right? 17 A. I believe so, yes, sir. 18 Q. You read page by page -- 19 A. Yes, sir. 20 Q. -- of Nurse James as well as the 21 physicians, correct? 22 A. Yes, sir. 23 Q. All right. Fibroids per se in a 24 premenopausal patient or a perimenopausal 25 patient, are they treated with progesterone 0068 1 therapy? 2 A. Not traditionally. 3 Q. Okay. The Lupron therapy, is that 4 a therapy that's utilized increasingly now to 5 minimize the size of fibroids? 6 A. Lupron is a drug that's used in 7 premenopausal women where fibroids have grown 8 secondary to estrogen being secreted from the 9 ovary and Lupron may then be used in 10 premenopausal women temporarily to shrink what 11 is assumed to be a fibroid in a premenopausal 12 woman. 13 Q. It's also utilized in 14 perimenopausal women to bridge the gap until 15 they reach menopause as well; isn't that 16 true? 17 A. No, sir. 18 Q. It's not? 19 A. No, sir. 20 Q. So -- 21 A. Did you say perimenopausal? 22 Q. Right. 23 A. No, sir. Not conventionally. 24 MR. MISHKIND: Let's go off the 25 record for one second. 0069 1 (Off the record at 12:07 p.m.) 2 (On the record at 12:07 p.m.) 3 BY MR. RIEMENSCHNEIDER: 4 Q. Okay. Can Lupron therapy cause 5 abdominal complaints? 6 A. Not in my experience. 7 Q. You -- Hasn't it caused nausea and 8 vomiting or any type of those GI 9 disturbances? 10 A. Not in my experience. 11 Q. How often do you utilize it? 12 A. I don't. 13 Q. Is estrogen only produced by the 14 ovaries? 15 A. Estrogen is also produced 16 elsewhere. 17 Q. Where at? 18 A. Fat cells. 19 Q. Okay. Patients who are fatter or 20 obese have higher estrogen levels. 21 A. Yes, sir. 22 Q. Can patients who are perimenopausal 23 who are obese have growth of a fibroid 24 because of those estrogen levels? 25 A. I would not assume that to be the 0070 1 case -- 2 Q. And why not? 3 A. -- in caring for a patient. 4 Q. Why not? 5 A. Well, a perimenopausal woman with a 6 presumed uterine fibroid that's obese, I'd 7 have to be concerned about the possibility of 8 other things causing a presumed fibroid to 9 grow. 10 Q. What percent of patients who 11 undergo a hysterectomy for fibroids turn out 12 to have a uterine sarcoma? 13 A. Very rare. 14 Q. But do you know the percent? 15 A. Less than a percent. 16 Q. Less than a -- 17 A. Less than 1 percent. 18 Q. How much less than 1 percent; do 19 you know? 20 A. Half a percent, .3 percent. 21 Q. Do you know Doctor Michener? 22 A. I may have met him but I can't 23 say that I know him and I'm not sure if I've 24 met him, but I know the name. 25 Q. You don't have any criticisms 0071 1 of -- 2 A. None whatsoever. 3 Q. Okay. I mean, the fact that he 4 -- even when he had set this patient up for 5 a hysterectomy, exploratory laparotomy, that he 6 still thought the risk of a sarcoma was low 7 is something you agree with, correct? 8 A. I was comfortable with his opine 9 -- of his opinion on that yes, sir. 10 Q. Because the truth is, even looking 11 at this retrospectively, the chance of a 12 uterine sarcoma in this particular patient was 13 still extremely low, correct? 14 MR. MISHKIND: Objection. 15 Go ahead. 16 A. I think the risk of a uterine 17 sarcoma needed to be considered in May 18 because of the patient's age, abnormal 19 bleeding and enlarging uterine mass. Even if 20 the diagnosis of a malignancy such as uterine 21 sarcoma is uncommon, it's still out there and 22 I think it's part of the gynecologist's, you 23 know, mandate, if you will, to be aware of 24 it and intervene. 25 Q. Sure. But even moving forward 0072 1 until December when the patient saw Doctor 2 Michener, even -- and then going back to the 3 subsequent events from May, June through 4 October of '05, the CT scan, et cetera, even 5 before the hysterectomy and the pathology came 6 clear, when Doctor Michener said the risk of 7 a sarcoma is still low, you have no reason 8 to disagree with that. 9 MR. MISHKIND: Objection. 10 But go ahead. 11 A. I have no reason to disagree with 12 that. 13 Q. And the reason is because it was 14 still a low probability even in December of 15 '05, true? 16 MR. MISHKIND: Objection. 17 Go ahead. 18 A. I think that while the probability 19 is low, it was sufficient that it had to be 20 seriously considered and that's why I agree 21 with Doctor Shuffer who I think opined 22 similarly... 23 MR. MISHKIND: Easy for you to 24 say. 25 BY MR. RIEMENSCHNEIDER: 0073 1 Q. Her chance of survival, even in 2 your opinion, was less than 50 percent going 3 back into May and June of '05, correct? 4 A. I would accept that, yes, sir. 5 Q. When there's metastases in these 6 type of patients, what's the typical mode of 7 death? 8 A. Given a variety of causes from 9 advanced malignancy including even sepsis or 10 overwhelming infection, bleeding. The mode of 11 death for this unfortunate patient was -- is 12 -- we see it, but it's relatively uncommon -- 13 tumor emboli. 14 Q. This was an acute emboli that 15 occurred, correct? 16 A. Yes, sir. 17 Q. Causing acute death. 18 A. Yes, sir. 19 Q. Many of these patients go -- and 20 I'm not arguing either way on this, but many 21 of these patients have a long -- days, weeks, 22 months of a downward spiral, correct? 23 A. Yes, sir. 24 Q. Where they become septic, develop 25 some kind of -- of other type of malignancy 0074 1 in other areas causing bleeding, et cetera. 2 A. Well, they can have impairment of 3 other systems from the malignancy that can 4 lead to further deterioration in a patient; 5 liver involvement, bowel obstruction, kidney 6 obstruction, overwhelming sepsis, lack of -- 7 lack of proper metabolic support of the -- it 8 can all contribute to deterioration and 9 ultimate demise. 10 Q. Now, you -- Besides Doctor 11 Verghese, are you critical of any of the 12 other physicians at Ohio Permanente or Kaiser? 13 A. I'd be critical of Doctor Green 14 treating this patient with Depo-Lupron in 15 October of 2005 when the patient then 16 presented with what I believe are symptoms of 17 advanced disease. 18 Q. Okay. 19 A. However, I'll also acknowledge that 20 at that point I believe the patient clearly 21 had an advanced process. 22 Q. And whatever was done at that 23 point wasn't going to make a difference in 24 the outcome of this case to -- 25 A. That's my belief, sir. 0075 1 Q. -- to a medical certainty. 2 A. To a medical probability, yes, sir. 3 Q. Okay. Any other criticisms of the 4 Kaiser Ohio Permanente? 5 A. No, sir. 6 Q. Assuming there was spread in June 7 of '05, hematogen -- I'm going to have a 8 hard time with that today -- through the 9 blood. We'll just make it -- 10 A. Blood borne. 11 Q. Blood borne. I'll make it as 12 simple -- 13 MR. MISHKIND: You don't know how 14 to say hematogenous? 15 MR. RIEMENSCHNEIDER: I need some 16 water. 17 BY MR. RIEMENSCHNEIDER: 18 Q. In any event, assuming it was 19 spread -- 20 MR. MISHKIND: Dirk -- Dirk, 21 seriously, here's a bottle. 22 MR. RIEMENSCHNEIDER: Thanks. 23 BY MR. RIEMENSCHNEIDER: 24 Q. Through the blood in May, June of 25 '05, you would agree more likely than not she 0076 1 would -- that would -- any treatment was not 2 going to change her outcome of this case, 3 correct? 4 MR. MISHKIND: Objection. 5 A. Had there been metastases in June 6 of 2005, it's unlikely that she would have 7 had long-term survival from her cancer. 8 Q. And when you talk about "long-term 9 survival," how do you define that? 10 A. Many years. There is evidence 11 from published -- from Massachusetts General 12 Hospital that even in the presence of locally 13 advanced leiomyosarcoma, improved survival may 14 result from the proper surgical procedure 15 having been performed. 16 Q. Now, when you've read about the 17 rapid growth, being a presumed clinical pearl 18 in the diagnos -- diagnosis of a uterine 19 sarcoma, you were referring to a study that 20 actually indicated that it really did not 21 have any bearing on the diagnosis. 22 A. Gynecologists are taught to be 23 cautious of rapidly growing uterine masses 24 which are assumed to be fibroids, and yet in 25 a large review, the study, you know, of over 0077 1 1,300 patients I commented on in my chapter, 2 it's still not always -- it's still very 3 infrequently a leiomyosarcoma. 4 So I think that the learning point 5 from this is that it's still an important 6 observation, but one must put it in the 7 context of an individual patient's 8 circumstances so that in someone who's turning 9 56 in a couple of months and has had daily 10 abnormal vaginal bleeding and now has a 11 documented enlarging uterine mass, that's a 12 setting where I think that so-called clinical 13 pearl needs to be one of the metrics that 14 gynecologists really should consider in how to 15 manage that patient with so much going on. 16 MR. RIEMENSCHNEIDER: Howard, do 17 you want to make a call? 18 MR. MISHKIND: Sure. 19 (Off the record at 12:19 p.m.) 20 (On the record at 12:21 p.m.) 21 BY MR. RIEMENSCHNEIDER: 22 Q. Going back to May and June of '05 23 you mentioned that she had -- assuming it was 24 encapsulated in the uterus, she had less than 25 a 50-percent chance of five-year survival? 0078 1 A. I'm sorry, I missed one phrase you 2 said. Assuming that it was encapsulated? 3 Q. Yeah. It was. 4 A. Okay. 5 Q. It had not spread out of the 6 uterus. 7 A. If we assume -- if we assume that 8 at the time of our laparotomy there was no 9 evidence of metastatic disease -- 10 Q. Right. 11 A. -- then her long-term survival 12 would have approached 50 percent. 13 Q. Okay. As to that number 14 approaching 50 percent, can you be any more 15 definitive? 16 A. I think I'm comfortable with the 17 way I stated it. 18 Q. Okay. And if a hysterectomy 19 showed that there was a spread outside of the 20 uterus, what would the five-year survival be 21 at that time? 22 A. We would not have any realistic 23 expectation that that patient would survive 24 five years. 25 Q. A great majority of those patients 0079 1 pass within a year or two, correct? 2 A. Yes, sir. 3 Q. Uterine sarcomas have the 4 propensity for early spread through the 5 bloodstream. 6 A. They can, yes, sir. 7 MR. MISHKIND: You mean the hemato 8 -- hematogenous? 9 MR. RIEMENSCHNEIDER: Hematogenous. 10 The hematogenous spread. I'm trying to be 11 consistent. 12 MR. MISHKIND: I just like to pick 13 on you every once in a while. 14 THE DEPONENT: You're showing off. 15 MR. MISHKIND: Right. It's the 16 only word I can pronounce. 17 MR. RIEMENSCHNEIDER: I like that. 18 I like that. 19 THE DEPONENT: Plaintiff lawyers. 20 BY MR. RIEMENSCHNEIDER: 21 Q. If -- Well, when they're spread to 22 the lungs it would be staged as IVB. 23 A. Informally referred to as Stage IV, 24 yes, sir. 25 Q. And as to when this pathology 0080 1 spread to the lungs in this particular case, 2 you can't be certain; just sometime before 3 October of '05. 4 A. Correct, sir. But with the 5 qualification that I believe had metastatic 6 disease with documentable pulmonary metastases 7 had been present, for instance a year before, 8 I would have expected this patient to have 9 not done well long before October of 2005 10 with this particular cancer. 11 Q. Whether she had spread to the 12 lungs in September or August of '05, you 13 can't say to a medical probability. 14 A. Correct, sir. 15 MR. MISHKIND: Objection. 16 BY MR. RIEMENSCHNEIDER: 17 Q. You would agree that many uterine 18 sarcomas can reach advanced stage in the 19 absence of any negligence on behalf of the 20 health care profession. 21 MR. MISHKIND: Objection. 22 Go ahead. 23 A. Yes, sir. 24 Q. Do you have an opinion why the 25 endometrial biopsy was negative that you'll be 0081 1 expounding on at the time of trial? 2 A. Yes, sir. 3 Q. And why is that? 4 A. The endometrial biopsy -- I didn't 5 -- I intended to bring a Pipelle with me 6 today -- it is an appropriate method of 7 biopsying the lining of the endometrial 8 cavity. However, leiomyosarcomas commonly 9 arise from within the muscle wall of the 10 uterus and may not be reached with a -- this 11 biopsy instrument. As a result of that, many 12 women with leiomyosarcomas are not identified 13 on an endometrial biopsy. As many as a 14 third will have had a negative endometrial 15 biopsy. 16 Q. I think you mention that in your 17 chapter as well. 18 A. I think so. 19 Q. Both radiation and chemotherapy 20 have limited benefits, correct? 21 A. Correct, sir. 22 Q. Are there any benefits to radiation 23 or chemotherapy that have been found? 24 A. Well, there have been some low 25 level of partial responses, but the -- 0082 1 neither chemotherapy nor radiation therapy are 2 reliable treatment forms for the long term 3 with this disease process. 4 Q. Do you always recommend 5 hysterectomy in patients with fibroids that 6 are causing bleeding and pain? 7 A. No, sir. 8 Q. What are your -- the other 9 treatment modalities besides myomectomy or 10 hysterectomy? 11 A. If I'm understanding your question 12 correctly, the majority of women with presumed 13 fibroids do not need surgical intervention and 14 -- or any other intervention for that matter. 15 The indications for intervening on 16 fibroids are abnormal bleeding that cannot be 17 controlled with other measures, interference in 18 fertility, obstructing surrounding structures 19 such as the kidneys resulting in so-called 20 hydronephrosis or behavior that would suggest 21 it may, in fact, not be a fibroid, that it 22 may be some other type of abnormal growth. 23 Other modalities that can be 24 employed to treat a fibroid depends on the 25 clinical circumstances. So one can surgically 0083 1 remove a fibroid with a procedure called 2 myomectomy in those instances in which 3 fertility is to be preserved. 4 Or patients may be treated with 5 so-called uterine artery embolization or local 6 radiographic measures by interventional 7 radiology in an effort to shrink the blood 8 supply to a fibroid, thereby shrink the 9 fibroid. There are other energy based 10 methods that can be employed to shrink a 11 presumed fibroid. 12 Again, these are -- non 13 hysterectomy measures are more when one can 14 reliably assume that the mass one is seeing 15 in the uterus is, in fact, a fibroid such as 16 a younger premenopausal woman and the doctor 17 is comfortable with that presumptive diagnosis. 18 These are not measures that one would employ 19 in a postmenopausal woman and a uterine mass 20 that is having other problems. 21 Q. The medical regimen that can be 22 used to shrink a fibroid in a premenopausal 23 patient would include what? 24 A. Lupron. 25 Q. Anything else? 0084 1 A. I'm sure there are other drugs out 2 there that can be used to shrink a fibroid. 3 Q. That's not something you'd do as a 4 clinician though. 5 A. Not on a day-to-day basis, sir, 6 no. 7 Q. I mean, you said you haven't used 8 Lupron. Have you utilized any nonoperative 9 type of treatment for fibroid? 10 A. Yes, I have. 11 Q. What are those? 12 A. We've used uterine artery 13 embolization. We've used other energy based 14 modalities to shrink fibroids, something called 15 HIFU. 16 Q. Doctor, have we discussed all your 17 opinions in this case? 18 MR. MISHKIND: Let me -- In 19 fairness, two things. Just one obviously, 20 he's going to talk about his -- the areas of 21 disagreement as he has with your experts 22 which we really haven't touched on. And 23 secondly, to the extent that he comes up -- 24 and I'll let him answer the question -- but 25 to the extent that he comes up with any new 0085 1 or additional opinions based upon the 2 depositions, I will make him available to you 3 as it relates to the family's depositions. 4 MR. RIEMENSCHNEIDER: All right. 5 MR. MISHKIND: But go ahead and 6 answer his question with my qualification. 7 BY MR. RIEMENSCHNEIDER: 8 Q. Go ahead, Doctor. 9 MR. MISHKIND: I feel like Terrell 10 Owens and his agents sitting here. 11 A. I have a -- I think that you've 12 truly covered the majority of my opinions. I 13 certainly, you know, reserve the right to 14 express, you know, why I would respectfully 15 disagree with the -- your experts. But 16 having said that, I think that the majority 17 of my opinions have been covered by you, sir. 18 Q. Have we discussed all the opinions 19 in which you're critical of the care that was 20 rendered at Kaiser? 21 A. Yes, sir. 22 Q. Okay. Have we discussed all your 23 opinions on the causation aspects as well? 24 A. Help me understand that term, sir, 25 please. 0086 1 Q. You know, that you -- regarding 2 treatment had been undertaken in May, June of 3 '05, what her percent of five-year survival 4 was, et cetera. 5 A. She at least had a chance of a 6 long-term survival -- 7 Q. Right. 8 A. -- or at the very least, longer 9 survival than she was otherwise provided, yes, 10 sir. 11 Q. Okay. And the only opinions that 12 you've mentioned here that we haven't 13 discussed are some opinions that you have in 14 disagreement I'm assuming with Doctor Barter, 15 Doctor Young and Doctor Jamieson. 16 A. Yes. And respectful disagreement 17 with Doctors Young and Barter. 18 Q. And why don't you go ahead and 19 list the disagreements you have with those 20 physicians. 21 MR. MISHKIND: Do you want 22 specifics? 23 BY MR. RIEMENSCHNEIDER: 24 Q. I guess specifically what do you 25 disagree with Doctor Young about? 0087 1 A. Doctor Young's expertise is as a 2 gynecologic pathologist, and I have a great 3 deal of respect for his ability to interpret 4 the histopathology of microscopic slides. 5 He is however not a gynecologist, 6 not a clinician and it is outside his area 7 of expertise to opine on the clinical 8 management of a patient with an enlarged 9 uterine mass or abnormal bleeding or how to 10 clinically care for a patient in his office. 11 Doctor Barter -- Again, Doctor 12 Barter and I, I'd consider friends and have 13 significant respect for his ability as a 14 gynecologist and gynecologic oncologist. 15 But Doctor Barter in his note does 16 not seem to emphasize an area which I think 17 is an important observation in this case, and 18 that is the ultrasound in May compared with 19 the ultra -- of 2005, compared to the 20 ultrasound in October of 2004 where there was 21 significant growth of the uterine mass in a 22 patient who is three-and-a-half months short 23 of turning 56 years of age. So those would 24 be my areas of disagreement. 25 Q. When you're talking about the 0088 1 ultrasounds, you're talking about the actual 2 mass that was listed at what, 5.7 centimeters 3 that grew? 4 A. Both. Both the overall uterine 5 size which in largest diameter was 12.7 in 6 October and went up to 14.8 in May. I can't 7 help but think of my high school teacher in 8 math talking about the geometry of a sphere 9 and, you know, a shortchange in the diameter 10 of a sphere or a ball actually results in a 11 pretty significant increase in the total 12 volume of that ball. 13 So going back to the specific 14 ultrasound measurements, it's clearly an 15 enlargement which Doctor Barter didn't mention 16 in his note. And I think with those imaging 17 studies, it is important to conclude that 18 this uterine mass was significantly increasing 19 in size in someone who was approaching 56. 20 Q. Anything else from their reports? 21 A. Well, I guess I'm compelled to 22 comment that Doctor Young's remarks that were 23 predicated upon my expert letter, and 24 extrapolate my letter in the management of 25 this patient to suggest that I would support 0089 1 hysterectomy for all patients with 2 leiomyosarcomas, to me is at the very least 3 overreaching and clearly out of his area of 4 expertise. So I would respectfully add that. 5 Kind of a silly comment I think on his part. 6 THE DEPONENT: Sorry, Robin. I'll 7 still send him slides, though. And you can 8 keep that on the record. That's fine. 9 A. Certainly I think my position is 10 also in disagreement with Doctor Jamieson's 11 opinion for the reasons that I have noted 12 generally. 13 MR. RIEMENSCHNEIDER: So I'm going 14 to reserve my right to redepose the doctor in 15 case there's anything in the literature or 16 anything else that he's reviewed that for 17 some reason he forgot to mention today. 18 MR. MISHKIND: Sure. 19 MR. RIEMENSCHNEIDER: Obviously 20 with respect to what you testified to on what 21 you reviewed. But I know it's your memory 22 so -- we don't have it here with us. So 23 depending on what's in that literature, since 24 we did request you to bring everything, I'll 25 just reserve my right to question you any 0090 1 further on that if need be. 2 THE DEPONENT: Yes, sir. 3 MR. RIEMENSCHNEIDER: And thank you 4 for your time. 5 THE DEPONENT: Thank you, sir. 6 MR. MISHKIND: Very good, and we 7 will read the deposition as I indicated to 8 you. I'll order a copy of it and I'll make 9 arrangements for the doctor. 10 (Original exhibit retained by 11 Doctor McLellan). 12 (Deposition of ROBERT McLELLAN, 13 M.D., adjourned at 12:37 p.m.) 14 . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 0091 1 DESCRIPTION OF EXHIBITS 2 EXHIBIT DESCRIPTION 3 1 Handwritten Notes 4 . 5 . 6 . 7 . 8 . 9 . 10 . 11 . 12 . 13 . 14 . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 0092 1 CERTIFICATE 2 COMMONWEALTH OF MASSACHUSETTS 3 SUFFOLK SS. 4 I, SUSAN A. ROMANO, Certified Shorthand 5 Reporter No. 119393, Registered Merit Reporter 6 and Notary Public in and for the Commonwealth 7 of Massachusetts, do hereby certify that the 8 witness whose deposition is hereinbefore set 9 forth, was duly sworn and that such 10 deposition is a true record of the testimony 11 given by the witness. 12 I further certify that I am neither 13 related to or employed by any of the parties 14 in or counsel to this action, nor am I 15 financially interested in the outcome of this 16 action. 17 In witness whereof, I have hereunto set 18 my hand and seal this 21st day of January 19 2008. 20 . 21 . 22 23 Susan A. Romano, Notary Public 24 My commission expires March 29, 2013 25 . 0093 1 CAPTION 2 The Deposition of Robert McLellan, 3 M.D., taken in the matter, on the date, and 4 at the time and place set out on the title 5 page hereof. 6 It was requested that the deposition 7 be taken by the reporter and that same be 8 reduced to typewritten form. 9 It was agreed by and between counsel 10 and the parties that the Deponent will read 11 and sign the transcript of said deposition. 12 . 13 . 14 . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 0094 1 CERTIFICATE 2 STATE OF : 3 COUNTY/CITY OF : 4 Before me, this day, personally 5 appeared, Robert McLellan, M.D., who, being 6 duly sworn, states that the foregoing 7 transcript of his/her Deposition, taken in 8 the matter, on the date, and at the time and 9 place set out on the title page hereof, 10 constitutes a true and accurate transcript of 11 said deposition. 12 13 Robert McLellan, M.D. 14 . 15 SUBSCRIBED and SWORN to before me this 16 day of , 2008 in 17 the jurisdiction aforesaid. 18 19 My Commission Expires Notary Public 20 . 21 . 22 . 23 . 24 . 25 . 0095 1 DEPOSITION ERRATA SHEET 2 . 3 RE: SetDepo, Inc. 4 File No. 21710 5 Case Caption: Caesar C. Dailey (E/O Lillian 6 Dailey) vs. Ohio Permanente Medical Group, Inc., et al. 7 Deponent: Robert McLellan, M.D. 8 Deposition Date: January 14, 2009 9 . 10 To the Reporter: 11 I have read the entire transcript of my 12 Deposition taken in the captioned matter or 13 the same has been read to me. I request 14 that the following changes be entered upon 15 the record for the reasons indicated. I 16 have signed my name to the Errata Sheet and 17 the appropriate Certificate and authorize you 18 to attach both to the original transcript. 19 . 20 Page No. Line No. Change to: 21 22 Reason for change: 23 Page No. Line No. Change to: 24 25 Reason for change: 0096 1 Deposition of Robert McLellan, M.D. 2 . 3 Page No. Line No. Change to: 4 5 Reason for change: 6 Page No. Line No. Change to: 7 8 Reason for change: 9 Page No. Line No. Change to: 10 11 Reason for change: 12 Page No. Line No. Change to: 13 14 Reason for change: 15 Page No. Line No. Change to: 16 17 Reason for change: 18 Page No. Line No. Change to: 19 20 Reason for change: 21 . 22 . 23 SIGNATURE:_______________________DATE:___________ 24 Robert McLellan, M.D. 25