1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 - - - 4 CATHLEEN C. LANE, etc., et al., 5 Plaintiffs, JUDGE SUSTER 6 vs. CASE NO. 322177 7 GEORGE B. KIRBY, D.D.S., et al., 8 Defendants. 9 - - - 10 Deposition of ROBERT K. NAHIGIAN, D.D.S., taken 11 as if upon cross-examination before Judi Sadler, 12 Registered Professional Reporter and Notary Public 13 within and for the State of Ohio, at the offices of 14 Gallagher, Sharp, Fulton & Norman, 7th Floor Bulkley 15 Building, 1501 Euclid Avenue, Cleveland, Ohio, at 16 10 a.m. on Tuesday, August 31, 1999, pursuant to 17 notice and/or stipulations of counsel, on behalf of 18 the Plaintiff in this cause. 19 20 - - - - 21 22 23 WARE REPORTING SERVICE 3860 Wooster Road 24 Rocky River, Ohio 44116 (216) 533-7606 FAX (440) 333-0745 25 2 1 I N D E X 2 Witness: 3 ROBERT K. NAHIGIAN, D.D.S. Page 4 Cross-examination by Mr. Hirshman 5 Cross-examination by Mr. Rymond 83 5 Cross-examination by Mr. Norchi 84 Recross-examination by Mr. Hirshman 88 6 - - - 7 8 E X H I B I T S 9 Plaintiffs': Marked 10 1 Curriculum Vitae 12 11 2 Report dated 3/17/99 17 12 3 Letter dated 10/15/99 to Dr. Robert 54 Nahigian from Matthew J. Hatchadorian 13 4 Letter dated 1/12/99 to Matthew 55 14 Hatchadorian from Dr. Robert Nahigian 15 5 Office records of Dr. Whelan 56 16 6 Handwritten notes 57 17 - - - - 18 19 20 21 22 23 24 25 3 1 APPEARANCES: 2 Tobias J. Hirshman, Esq. Linton & Hirshman 3 Hoyt Block, Suite 300 700 West St. Clair Avenue 4 Cleveland, Ohio 44113-1230 (216) 761-2811 5 On behalf of the Plaintiffs; 6 D. John Travis, Esq. 7 Gallagher, Sharp, Fulton & Norman 7th Floor Bulkley Building 8 1501 Euclid Avenue Cleveland, Ohio 44115 9 (216) 241-5310 10 On behalf of Defendant George B. Kirby; 11 Matthew J. Hatchadorian, Esq. Gallagher, Sharp, Fulton & Norman 12 7th Floor Bulkley Building 1501 Euclid Avenue 13 Cleveland, Ohio 44115 (216) 241-5310 14 On behalf of Defendant Richard L. Whelan; 15 Richard Rymond, Esq. 16 Reminger & Reminger The 113 St. Clair Building 17 Cleveland, Ohio 44114 (216) 687-1311 18 On behalf of Defendant Dr. Callahan; 19 Roy A. Hulme, Esq. 20 Reminger & Reminger The 113 St. Clair Building 21 Cleveland, Ohio 44114 (216) 687-1311 22 On behalf of Defendant Dr. Synenberg; 23 24 25 4 1 APPEARANCES (Continued): 2 Colleen H. Petrello, Esq. Mazanec, Raskin & Ryder Co., L.P.A. 3 100 Franklin's Row 34305 Solon Road 4 Cleveland, Ohio 44139 (440) 248-7906 5 On behalf of Defendant Dr. Witt; 6 7 Matthew P. Moriarty Co., L.P.A. Commerce Park IV, Suite 525 8 23240 Chagrin Boulevard Beachwood, Ohio 44122 9 (216) 896-1066 10 On behalf of Defendant Richard L. Whelan; 11 Kevin M. Norchi, Esq. 12 Davis & Young Co., L.P.A. 1700 Midland Building 13 101 Prospect Avenue Cleveland, Ohio 44113 14 (216) 348-1700 15 On behalf of Defendant Robert Katz. 16 17 - - - 18 19 20 21 22 23 24 25 5 1 ROBERT K. NAHIGIAN, D.D.S., of lawful age, 2 called by the Plaintiffs for the purpose of 3 cross-examination, as provided by the Rules of Civil 4 Procedure, being by me first duly sworn, as hereinafter 5 certified, deposed and said as follows: 6 CROSS-EXAMINATION OF ROBERT K. NAHIGIAN, D.D.S. 7 BY MR. HIRSHMAN: 8 Q. Why don't you state your full name for me, Doctor? 9 A. Is everybody going to hear or are you and I going 10 to talk? 11 Q. We're going to talk and if they want to listen, 12 they can. We're talking, but more importantly, 13 you're talking to her. 14 A. Again, you're asking for my name? 15 Q. I asked for your name. 16 A. Robert K. Nahigian. 17 Q. And you're a dentist? 18 A. I'm a dentist. 19 Q. So D.D.S. is after your name? 20 A. D.D.S. 21 Q. Any other initials after your name? 22 A. No. 23 Q. Tell me, if you would, your home address. I don't 24 think -- 25 A. 5464 Park Drive, Vermilion, Ohio 44089. 6 1 MR. HATCHADORIAN: You've got to speak 2 up. 3 THE WITNESS: Louder? 4 Q. It is on your CV here that I have. 5 A. Okay. 6 Q. Have you ever been deposed before? 7 A. Yes. 8 Q. On how many occasions? 9 MR. HATCHADORIAN: The best you can 10 remember. 11 A. Probably two, three. 12 Q. Were you deposed as an expert before? 13 A. Uh-huh. 14 Q. That's a yes? 15 A. Yes. 16 Q. Okay. So you've been deposed as an expert in two 17 or three cases? 18 A. Yes. 19 Q. And presumably, you've looked at cases in addition 20 to that that you haven't been deposed in? 21 A. Yes. Well, I've only been involved with three 22 other -- I think three other cases. 23 Q. So the two or three that you've been deposed in, 24 and three others in addition to that? 25 A. No, no, a total of three. You asked me originally 7 1 if I had been deposed before and I said yes. 2 Q. Okay. 3 A. Okay. And I believe in cases where different 4 people are in the same case. Is that the same -- 5 do you consider that one deposing? 6 Q. One deposition? 7 A. Yeah. 8 Q. Where multiple people ask you questions? 9 A. No, where other people had their comments. I don't 10 know how you classify that, so I have been deposed 11 in another case. 12 Q. All right. As an expert witness? 13 A. As an expert witness. 14 Q. Have you ever been deposed -- have you ever had a 15 lawsuit filed against you? 16 A. Yes, I have. 17 Q. How many times? 18 A. Once. 19 Q. Okay. Let's start with the lawsuit that was filed 20 against you and talk about that. 21 A. Okay. 22 Q. And before I do, let's try to get a couple very 23 simple rules straight, if we can. She can't take 24 you talking and me talking at the same time and I 25 feel that happening already. 8 1 A. All right. 2 Q. You let me finish my questions and I'll let you 3 finish your answers and then the court reporter 4 will have a much easier time. 5 A. Okay. 6 Q. If you don't understand what I'm asking, you're 7 expected to tell me. You're not supposed to answer 8 questions that you don't understand nor do I expect 9 you to. Ask me for a clarification and I'll do 10 that, if I can. 11 Let's start talking about the case that you 12 were sued in, if we might. Can you tell me when 13 that was? 14 A. Not exactly, no. 15 Q. Can you tell me approximately? 16 A. It must have been the late '80s. 17 Q. What was the nature of the claim? 18 A. The nature of the claim was that I did some work on 19 a gentleman and he did not pay his bill, so I sent 20 his case to the local claims court in Rocky River 21 and he was told to pay the bill, and then he turned 22 around and sued me. 23 Q. What was he alleging? 24 A. He was alleging that I destroyed his mouth. 25 Q. Was there a more specific allegation than that? 9 1 A. No, I had destroyed his mouth. 2 Q. And was any money paid on your behalf? 3 A. No, there wasn't. 4 Q. All right. Let's talk about the cases that you've 5 testified in, the cases you've been retained as an 6 expert in. Let's just deal with it in those terms. 7 There were about three of those cases? 8 A. Yeah. You know, if I had known that was going to 9 be asked, I would have looked them up. 10 MR. HATCHADORIAN: Just answer his 11 question. If you remember, tell him. If 12 you don't remember, you don't. 13 Q. Have you ever been retained as an expert for the 14 plaintiff in a malpractice case? 15 A. Yes. 16 Q. How many of those three? 17 A. One. 18 Q. So the other two were for the defendant? 19 A. Uh-huh. 20 Q. That's a yes? 21 A. Yes. 22 Q. Rule No. 3, you've got to answer with words rather 23 than grunts. 24 A. Yes. 25 Q. Tell me about the case where you were retained as a 10 1 plaintiff's expert. First of all, tell me who it 2 is that retained you, what lawyer. 3 A. I have no idea. 4 Q. Tell me who the doctor was who you were testifying 5 against. 6 A. I don't remember that one, either. It's been that 7 long, so -- 8 Q. Tell me what the issue was. 9 A. The issue was a patient came into my office and had 10 some previous dental work done. And there was -- 11 it was so bad, I recommended to her to go back and 12 see the man and see if he would do it over again. 13 And he refused to do it, so she asked me what my 14 opinion was and I said I think you're justified in 15 trying to recover her expense. 16 Q. All right. Was this restorative work? 17 A. Yes. 18 Q. The other two cases that you alluded to are cases 19 where you testified on behalf of a defendant 20 dentist? 21 A. No. The others I remember as being -- they sent me 22 the material and I reviewed it and I told them that 23 I don't believe they had much of a case and that's 24 where it ended, I believe. 25 Q. So the other two were also for plaintiffs? 11 1 A. I guess, if I remember correctly. I really -- it's 2 been a long time -- long time ago. 3 Q. All right. Have you ever been involved in any 4 litigation involving issues pertaining to oral 5 cancer? 6 A. No. 7 Q. All right. I have a copy of your CV in front of 8 me, three pages in length. I'm going to have it 9 marked as an exhibit. Mine is all marked up. Do 10 you have a clean copy somewhere that I can have 11 marked? 12 A. I don't even know why you have that in front of 13 you, Mr. Hirshman. I don't know what that has to 14 do with -- 15 MR. HATCHADORIAN: I sent it to him, 16 Bob. 17 Q. I didn't surreptitiously get it from your office, 18 I'll tell you that. 19 A. I know, but that is -- that is a resume that I have 20 put together to apply for a possible city job, 21 so -- 22 MR. HATCHADORIAN: Hold it just a 23 moment. Let's go off the record for a 24 minute. 25 (A discussion was had off the record.) 12 1 (Nahigian Exhibit 1 was marked.) 2 Q. Showing you Exhibit 1, is that a resume or a 3 curriculum vitae that you had prepared in the past? 4 A. I prepared this. 5 Q. And is it an accurate statement as it relates to 6 the credentials that it is seeking to depict? 7 A. Yes. 8 Q. All right. Do you have any other resume or CV? 9 A. No. 10 Q. That's the only CV that exists depicting your 11 training, experience and credentials? 12 A. Yes. 13 Q. All right. You indicated that you don't know why I 14 have this. Are you suggesting that it's 15 inappropriate for me to have a copy of this? 16 MR. HATCHADORIAN: I indicated that he 17 didn't know that I sent it to you, so -- 18 MR. HIRSHMAN: Well, I'm asking him 19 what the thrust was in his response. 20 A. There's other information on there that is 21 certainly not relevant to anything. The other 22 thing is, that is really not a dental resume 23 because I don't believe -- I don't remember because 24 it was made up a while back, whether it has -- does 25 it have anything there in regards to my teaching at 13 1 Case Western Reserve? I don't even know if they're 2 in there, because it was not -- you know, a resume 3 is to show what you've been in the past. 4 Unfortunately, when you've been a dentist for 38 5 years, you have to put things in there that were 6 more -- had more relevance to the job that I was 7 applying for, and certainly the dentistry is part 8 of it. 9 Q. So you were applying for a specific job when you 10 prepared this -- 11 A. Yes. 12 Q. -- particular document? 13 A. Yes. 14 Q. And what job was it that you were applying for? 15 A. Well, like I mentioned, I would like to get a job 16 with the city department, some sort, as the 17 director. 18 Q. The city of Fairview Park? 19 A. Many. I have applied to different -- 20 Q. In other words, you've applied to a number of 21 different municipalities? 22 A. -- municipalities. 23 Q. For a job as director of? 24 A. Service safety. 25 Q. All right. Is that something that you intend to do 14 1 in addition to practicing dentistry? 2 A. No -- well, it depends on if it's part time, full 3 time or when it comes. 4 Q. So given the correct -- you haven't been offered 5 such a job at this time, I take it? 6 A. No, I have not. 7 Q. Assuming that such a job is offered at a 8 municipality that wants you to do it on a full-time 9 basis, you're prepared to do that? 10 A. Yes. 11 Q. All right. Tell me, if you would, what the extent 12 of your dental practice is at the present time. 13 A. I don't understand what you mean. 14 Q. How many hours a week do you practice dentistry? 15 A. I practice four days a week. 16 Q. How many hours a day? 17 A. 9 to 5. 18 Q. Okay. And you were born in what year? 19 A. '35. 20 Q. I take it you're at that point in your career where 21 you wish to retire from dentistry? 22 A. I'm not certain of that. Until you get to the age 23 of 64, you'll not know the feeling that you have at 24 64 to determine that. So right now I am debating 25 between the two. 15 1 To clarify this, because it seems to be 2 confusing to you -- 3 MR. HATCHADORIAN: Just answer his 4 questions. Don't clarify anything. Just 5 answer the question that he asks you. 6 THE WITNESS: I'm not certain -- 7 MR. HIRSHMAN: I don't tell any of my 8 experts to do that, Matt. 9 MR. HULME: That's why we've been seven 10 hours. 11 MR. RYMOND: I wish you would have. 12 MR. HULME: I'll second most of your 13 "move alongs" if you want. 14 Q. We're going to be here presumably less time than 15 seven hours, but I'm going to ask you questions and 16 I want you to respond to them. I want you to 17 respond to them accurately and I want you to 18 respond to them fully. 19 Are you willing to do that? 20 A. I will -- 21 MR. HATCHADORIAN: Just answer. 22 A. I will have to leave at 1 o'clock unless other 23 arrangements are made, so -- 24 MR. HATCHADORIAN: Well, we're a 25 distance from 1 o'clock at the moment. 16 1 THE WITNESS: Okay. 2 Q. All I'm asking is if you are willing to answer the 3 questions I ask you accurately? 4 A. I'll answer the questions you ask me as accurately 5 as I can. 6 Q. And fully? 7 A. And fully. 8 Q. Are you familiar with the practice of endodontics? 9 A. Yes, I am. 10 Q. And I note here, your resume, on Page 2 that you 11 established an endodontic dental clinic at Keesler 12 Air Force Base sometime in the early '60s; is that 13 right? 14 A. That's right. 15 Q. Have you looked at this case as it relates to 16 Dr. Synenberg? 17 A. No. 18 Q. Do you know who Dr. Synenberg is? 19 A. No. 20 Q. All right. Before we go any further, do you have a 21 copy of your report in front of you? 22 A. Yes, I do. 23 Q. One? 24 A. One. 25 MR. HIRSHMAN: I'm going to have your 17 1 report marked as Exhibit 2. 2 (Nahigian Exhibit 2 was marked.) 3 Q. I'm going to show you Nahigian Exhibit 2 and ask 4 you if that is your report? 5 A. Yes, it is. 6 Q. And is that the only report you have ever written 7 in this case? 8 A. Yes. 9 Q. Is that the only letter you have ever written to 10 counsel? 11 MR. HATCHADORIAN: To me? 12 Q. For Dr. Whelan in this case? 13 A. Yes. 14 Q. All right. No drafts that were written before 15 this, correct? 16 A. Not that were sent. 17 Q. Were there drafts that were made before this 18 version that I've now marked as Nahigian Exhibit 2? 19 A. Yes. 20 Q. And this particular document is dated March 17th, 21 1999. I take it you wrote drafts before this that 22 you then discussed with Mr. Hatchadorian? 23 A. Yes. 24 Q. And changes were made subsequent to those 25 discussions? 18 1 A. Mainly -- what's the word I want? -- how to present 2 it. You know, the typing part of it. Not much of 3 anything. 4 Q. Do you have copies of those drafts? 5 A. No, I don't. No, I don't. 6 Q. How many times was this redraft? 7 A. Probably once. 8 Q. Tell me, if you would, what materials -- before we 9 get to that. 10 So you had a draft that you either sent or 11 faxed to Mr. Hatchadorian or read to him? 12 A. That's right. 13 Q. Which was it? 14 A. I read to him. 15 Q. All right. You read to him over the phone? 16 A. Yes. 17 Q. And then subsequently alterations were made? 18 MR. HATCHADORIAN: Objection. I don't 19 think that's what he said. 20 MR. HIRSHMAN: I think it's pretty much 21 exactly what he said. 22 A. No, I said on the -- okay. I asked him if he 23 wanted me to include the records or the people's 24 names that I reviewed, and that's what we 25 discussed. 19 1 Q. So what you're telling me is that the only change 2 that occurred in the letter that you initially 3 drafted was that the materials reviewed were added 4 to the letter? 5 A. Yes. 6 Q. Nothing else was changed? 7 A. Not that I remember. 8 Q. Okay. Are those materials that are listed at the 9 top of the letter the sole -- is that a full list 10 of the materials that you reviewed in this case? 11 A. Yes. 12 Q. Have you reviewed any additional materials since 13 you wrote that letter? 14 A. I don't believe I have. 15 MR. HATCHADORIAN: No. 16 A. No. 17 Q. So the only materials that you've reviewed in this 18 case are the deposition and records of Mr. Whelan, 19 the report of Dr. Allen, the deposition of Cathleen 20 Lane, the report of Drs. Bogdasarian, Dierks and 21 Levitan? 22 A. That's right. 23 Q. Did you ask for any additional materials? 24 A. No, I didn't. 25 Q. Are you aware that there were significant volumes 20 1 of materials in addition to those? 2 A. No, I was not. 3 Q. Do you know Mr. Hatchadorian or did you know him 4 prior to your involvement in this case? 5 A. Yes, I did. 6 Q. Tell me how it is that you knew Mr. Hatchadorian 7 prior to your involvement in this case. 8 A. He was involved as county auditor and in his race 9 for county auditor. 10 Q. You were involved in his race for county auditor? 11 A. You said how did I get to meet him. 12 Q. Yes. 13 A. That's how I got to meet him, in his race for 14 county auditor. 15 Q. He ran for county auditor? 16 A. He ran for county auditor. 17 Q. And you got to know him through that race? 18 A. I got to know him through that race. 19 Q. Now, tell me how you got to know him through that 20 race. 21 A. Well, if you notice, both of our names end in 22 i-a-n, and I guess that's just how those things 23 happen, I guess. 24 Q. When was this? 25 MR. HATCHADORIAN: 1982. 21 1 A. Oh, God, '82. 2 Q. '82. So you've known Mr. Hatchadorian since 1982? 3 A. Yes. I have not -- 4 MR. HATCHADORIAN: Just answer the 5 question. 6 A. Yes, since 1982. 7 Q. And have you had an association with him since that 8 race for county auditor in 1982? 9 A. No. 10 Q. You haven't seen him from 1982 until just before 11 you wrote this report in 1999? 12 THE WITNESS: I don't think I've ever 13 seen you, have I? 14 MR. HATCHADORIAN: Maybe once or twice 15 for lunch or something. I don't know. I 16 don't remember. 17 A. I don't think I've ever seen him. I really don't 18 think I've ever seen him. If it was, it could have 19 been at a party. I don't want to lie about that. 20 Q. Yeah, I don't want you to lie and I expect you not 21 to. That's kind of a rule here. 22 MR. HATCHADORIAN: I don't go to the 23 West Side very much. 24 Q. You've not gone to lunch with Mr. Hatchadorian? 25 A. Yes, I did. I've been with him recently. 22 1 Q. When was that? 2 MR. HATCHADORIAN: Last week. 3 A. A week ago. You'll make a note there I bought, 4 too. 5 Q. Okay. You bought. 6 MR. HATCHADORIAN: Just answer the 7 questions. 8 THE WITNESS: Just answer the 9 questions. 10 Q. So when Mr. Hatchadorian ran for county auditor, 11 what were the circumstances under which you met his 12 acquaintance? 13 A. Well, I have a brother. He's an East Sider and 14 from what I can remember, I think he just asked me 15 to -- we met at his house -- met someplace, I don't 16 really remember. I really don't. It was strictly 17 an Armenian candidate running for the county office 18 and a lot of the Armenians were asked to stand and 19 I was asked. There's only a few Armenians on the 20 West Side. That may save you from asking me some 21 questions. 22 Q. So you supported him in his campaign? 23 A. Yes. 24 Q. And did he win that campaign? 25 A. No, no. 23 1 MR. HATCHADORIAN: No. It was a 2 Celeste landslide. 3 Q. Have you supported him in any of his other 4 campaigns for office? 5 A. No, never again, no. 6 MR. HATCHADORIAN: Doesn't support 7 losers, Toby. 8 Q. Do you know Dr. Whelan or did you know Dr. Whelan? 9 A. Yes. 10 Q. Tell me how it is you knew Dr. Whelan? 11 A. Dr. Whelan was involved, I believe -- and again 12 this has to go back to the '70s probably -- with 13 the dental society, and I knew of him that way. I 14 had never -- 15 Q. This is the county dental society? 16 A. Cleveland Dental Society. 17 Q. Cleveland Dental Society. You were both members of 18 it? 19 A. Yes. 20 Q. Were either of you officers of it? 21 A. I don't know if he was. I don't -- he was very 22 active in it. I was doing political things. Just 23 answer the question. 24 MR. HATCHADORIAN: Just answer the 25 question. 24 1 Q. So you would meet him in society meetings from time 2 to time or society functions from time to time? 3 A. No, I wouldn't meet him. I would be there when he 4 was there. 5 Q. All right. You'd both be in attendance? 6 A. In attendance. 7 Q. And you knew him? 8 A. I knew him. 9 Q. You knew him well enough to know him by his -- know 10 him to recognize him when you saw him? 11 A. Yes, yes. 12 Q. And to greet him and to say hello? 13 A. Yes. 14 Q. Did you ever socialize with him? 15 A. No. 16 Q. Do you know his wife? 17 A. No. 18 Q. Do you know Dr. Kirby? 19 A. No. 20 Q. Dr. Callahan? 21 A. No. 22 Q. Dr. Witt or Dr. Katz? 23 A. No. 24 Q. You don't have any records of Dr. Callahan? Did 25 you know he was a defendant in this case? 25 1 A. No. 2 Q. Did you know that Dr. Witt was a defendant? 3 A. No. 4 Q. Or Dr. Katz? 5 A. I saw Katz' name in the thing. 6 THE WITNESS: Does that mean I know? 7 MR. HATCHADORIAN: If you saw his name, 8 it doesn't mean he was a defendant. Just 9 tell him what you know, if he was a 10 defendant. 11 Q. Tell me what you know. I'm not here to -- 12 A. I'm not supposed to say anything besides yes or no 13 and then you want me to tell you what I know. 14 Q. I never told you to answer yes or no. I asked you 15 to answer fully. 16 A. I have seen his name in some of these -- in some of 17 these reports. So whether that makes him -- 18 MR. HATCHADORIAN: You don't have to 19 say. 20 Q. How about Dr. Synenberg, do you know him? 21 A. No. 22 Q. Have you looked at any films? 23 A. No. 24 Q. And I take it you've not seen the reports of 25 Dr. Hauser or Dr. Tucker or Dr. Rossman, 26 1 Dr. Glickman or Dr. Steven Katz? 2 A. That's right. 3 Q. Have you had occasion to work in conjunction with 4 oral pathologists at any point during your career? 5 A. Work with them, no. 6 Q. Refer patients to them? 7 A. Yes -- no. 8 Q. Have you had occasion to refer patients to 9 physicians who took tissue specimens that were 10 ultimately sent to an oral pathologist? I guess I 11 have to ask that question that precisely to get you 12 to respond to it in the way I think you're going to 13 respond to it, don't I? 14 MR. HATCHADORIAN: Objection. Just 15 answer the question. 16 A. No. 17 Q. You haven't? 18 A. No. 19 Q. Okay. Have you ever had a patient in your practice 20 that you sent for a biopsy? 21 A. Yes. 22 Q. Is that something that happens -- why don't you 23 give me some idea as to the regularity with which 24 that happens or the frequency with which that 25 happens. 27 1 A. Well, like I stated in my letter, it's very seldom. 2 Q. I don't know if I picked that up in your letter. 3 Where do you see that? 4 A. "The case is referred to an outside specialist." 5 Q. Which paragraph is that? 6 A. Third, I think. "If a dentist is suspicious of a 7 particular area, it is evaluated, discussed, and if 8 necessary, the case is referred to an outside 9 specialist, usually an oral surgeon." 10 Q. Okay. So that's something that occurs from time to 11 time in your practice? 12 A. Yes. 13 Q. Under what circumstances do you send patients to an 14 outside specialist for a biopsy? 15 A. If I see something that would be suspicious or if I 16 see something that is possibly an annoyance to the 17 patient physically, I suggest it be removed. Plus, 18 I have removed them myself and have sent them on to 19 biopsy. 20 Q. So it's something that you don't need to be an oral 21 surgeon to do? 22 A. That's right. 23 Q. And your practice is a general dental practice? 24 A. Yes. 25 Q. And when you send them off for biopsy, where do you 28 1 send them? 2 A. I think it goes to University Hospital. 3 MR. HATCHADORIAN: To the best of your 4 knowledge. 5 A. To the best of my knowledge, it's either University 6 -- there's a little container in our office that 7 has all the -- you know, the necessary labels, 8 et cetera and it's -- the biopsy is put in there or 9 the lesion is put in there or the growth, whatever 10 it is, is put in there. The specimen is put in 11 there, and then it is sent and I get a report back. 12 Q. All right. So if it's an annoyance, in other 13 words, if a patient of yours comes in complaining 14 about a bump or a defect in the mucosa of his or 15 her mouth, you have found it within your area of 16 competence to remove that lesion or take a sample 17 of it and send it to University Hospitals for 18 pathological examination? 19 A. Well, I don't like the word "lesion," so that's not 20 the case. If it's a lesion, it's a whole different 21 ballgame. These are little fibromas where people 22 have bitten on their cheek and there's a little 23 annoyance hanging there and it's removed, and 24 whenever I removed anything, it's biopsied. 25 Q. All right. So if it is something that qualifies, 29 1 in your mind, as a, quote, "lesion," end of quote, 2 you will refer them out for a biopsy, correct? 3 A. Yes. 4 Q. Okay. And when you make that kind of a referral, 5 who do you send -- 6 A. An oral surgeon. 7 Q. Which oral surgeon do you use? 8 A. Well, there's been a lot of them through the years. 9 Dr. Millman was one for many years and he has 10 retired, and now it's Blakemore. Blake -- 11 Blakemore. There's two of them. 12 Q. What, in your mind, is the distinction between a 13 lesion and what I think you referred to as a 14 fibroma? 15 A. Well, there's quite a difference. I mean, what do 16 you want, histologically or appearance? 17 Q. Well, I used the word lesion and you took issue 18 with -- 19 A. Yeah. 20 Q. -- the statement that you personally remove 21 lesions. And you indicate you send them out to be 22 biopsied by an oral surgeon, so I'm interested in 23 what you see as the distinction between a fibroma 24 and a lesion. 25 A. Fibroma is just a little bump in the tissue and you 30 1 can never tell whether it's like a little mucocele, 2 where they may have damaged the gland and, 3 therefore, there's a little bump there. These have 4 numbered probably a total of 3 times in 38 years, 5 so -- 6 Q. That you've personally -- 7 A. That I've personally removed. Sometimes they will 8 bite the tip of their tongue or their cheek or 9 something. There's a little annoyance there to 10 them and I will remove it. I don't do much of that 11 anymore. But a lesion, to me, is an open -- it's 12 an open wound of some sort. 13 Q. Well, I suppose a lesion if you were to see an area 14 of leukoplakia -- leukoplakia -- what is 15 leukoplakia, if I'm pronouncing it right? Is it 16 leukoplakia or -plakia? 17 A. Leukoplakia. 18 Q. Do you know what that is? 19 A. Yes. 20 Q. What is that? 21 A. Well, there's a lot of terminology for it. Some 22 people say that it's an irritation caused by 23 smoking. It can be -- it's a white change in 24 tissue. It can be caused by chewing on your cheek. 25 Some people even go to say it can lead to other 31 1 things, but the majority of the time it's just 2 leukoplakia. 3 Q. When you have a patient with a leukoplakic area on 4 the mucosa of their mouth -- 5 A. Yes. 6 Q. -- does that, in your mind, justify referring that 7 patient to an oral surgeon for biopsy? 8 A. Absolutely not. 9 Q. You've never referred a patient for leukoplakia? 10 A. Absolutely not, no. 11 MR. HATCHADORIAN: Let him finish his 12 question. 13 Q. Have you had patients with granulated leukoplakia? 14 Does that mean something to you when the word 15 granulated -- 16 A. Not really. 17 Q. -- is used in conjunction with leukoplakia? 18 A. No. 19 Q. What, if any, textbooks do you utilize in the 20 course of your practice dealing with mucosal issues 21 as opposed to issues pertaining to the teeth 22 themselves? 23 A. Well, I have a couple textbooks there, but I can't 24 tell you the name of them. 25 Q. Can you tell me the author? 32 1 A. No, I don't know. 2 Q. What journals do you read? 3 A. I read the American Dental Association. We have a 4 Dental Economics. We have a Dental Products. 5 Q. American Dental Association puts out -- 6 A. A journal. 7 Q. -- a journal? 8 A. Every month. 9 Q. And it's called? 10 A. American Dental -- journal -- oh, God. American 11 Dental -- 12 MR. HATCHADORIAN: If you know the 13 name, tell him. If you don't know -- 14 A. Well, it makes me sound like I don't know what I'm 15 reading, but that's not the case. It's the monthly 16 journal that the American Dental Society sends to 17 us, but there are others that are -- 18 Q. What other journals do you read, other than -- 19 A. Dental Economics. 20 Q. Hold on. 21 A. There's a -- 22 Q. Go ahead. 23 A. There's a Dental Products. There's a perio one 24 that comes through the mail. That first one is 25 JDA, so it must be Journal of the Dental 33 1 Association maybe, something like that. 2 Q. So other than JDA -- that's the name of the 3 journal? 4 A. Yeah. 5 Q. -- are you unable to give me the titles of any of 6 the other journals that you read? 7 A. Well, I said Dental Economics is one. Dental 8 Products is another. 9 Q. Dental Products is a name? 10 A. Yeah, that's right. 11 Q. Okay. 12 A. I read everything that comes through that office. 13 Q. Well, that's what I'm trying to figure out, what 14 comes through the office. 15 MR. HATCHADORIAN: Do you know the 16 names of any other journals? 17 THE WITNESS: Not specifically. 18 MR. HATCHADORIAN: Okay. Then that's 19 your answer. 20 THE WITNESS: Okay, okay. 21 Q. Okay. You never read anywhere within your readings 22 about the risks of cancer and dysplasia associated 23 with leukoplakic lesions? 24 A. Could you reword it for me? 25 MR. HIRSHMAN: I'll let her repeat it. 34 1 I thought it was not so bad. I've done 2 worse. 3 (Record read.) 4 MR. HATCHADORIAN: Object to the form. 5 A. That's not so. You said, "You never." 6 Q. Your answer is "not so." So you have heard about 7 an association between leukoplakia and cancer in 8 precancerous conditions? 9 A. That's right. 10 Q. All right. So you nonetheless have never had a 11 leukoplakic lesion biopsied in your practice? 12 A. That's right. 13 Q. And can you tell me why? 14 A. I've never needed to. 15 Q. Can you explain that for me? 16 A. Well, the extent probably of the lesion -- of the 17 leukoplakia. 18 Q. Is it something that you see? 19 A. Leukoplakia is in your mouth and is in my mouth 20 probably right now. 21 A. It's not in my mouth. 22 Q. I bet we can find leukoplakia. 23 MR. TRAVIS: Okay. Let's take a break 24 right now. 25 MR. HATCHADORIAN: Let's take a break. 35 1 (Recess taken.) 2 Q. One of the books that you utilize in your practice 3 is the Merck Manual? 4 A. Merck Manual. 5 Q. When in your practice would a leukoplakic lesion, 6 if ever, require a referral for a biopsy? 7 A. If I noticed a radical change. 8 Q. Over time? 9 A. Over time. 10 Q. It presumably means that you, as part of your 11 practice, do an examination of the mouth? 12 A. That's right. 13 Q. And when you do an examination of the mouth, it's 14 not simply looking at the teeth as your dealing 15 with them for restorative purposes, you actually do 16 a physical examination of the mouth? 17 A. During the oral exam period, yes. 18 Q. And how often do you do oral exams on your 19 patients? 20 A. Six months. 21 Q. So every six months? 22 A. Uh-huh. 23 MR. HATCHADORIAN: You have to answer 24 yes. 25 Q. The answer is yes? 36 1 A. Yes. I'm sorry. 2 Q. So when a patient comes in for restorative work or 3 comes in for an examination and a cleaning, they 4 are also examined for any lesions on their oral 5 mucosa? 6 A. Yes. 7 Q. I talk slow, but if you let me finish, it will make 8 this run a little bit more smoothly. 9 A. Okay. 10 Q. And that examination is done by your hygienist as 11 well as by you, I take it? 12 A. No. 13 Q. By whom? 14 A. By me. 15 Q. It's done by you? 16 A. Uh-huh. 17 Q. You don't leave that to your hygienist? 18 A. I don't have a hygienist. 19 Q. Okay. And then you make notations in your records 20 regarding any findings that you make? 21 A. That's right. 22 Q. And if you see a lesion, you document it? 23 A. That's right. 24 Q. And in order to determine whether there's been a 25 change, you obviously make rather descriptive 37 1 comments in your notes regarding the nature of the 2 lesion? 3 A. Yes. 4 MR. HATCHADORIAN: Objection. 5 A. Would you -- 6 Q. Correct? 7 A. -- repeat that? 8 MR. HIRSHMAN: I'll let the reporter 9 read it. 10 (Record read.) 11 MR. HATCHADORIAN: Do you understand 12 the question? 13 THE WITNESS: No, I don't. 14 Q. You've indicated that a leukoplakic lesion that 15 changes would be something that you would refer for 16 a biopsy, correct? 17 A. No. I think that you are assuming that when I see 18 a leukoplakia or an area of leukoplakia that I feel 19 this is a suspicious area, and that is not the 20 case. I have not seen an area of leukoplakia that 21 was really suspicious enough to warrant a biopsy. 22 Q. Now -- 23 A. Okay. 24 Q. Let's put it this way, then. If you're just 25 dealing with a leukoplakia, then you don't even 38 1 note it in your records? 2 A. I may just note lower right side has some white 3 areas which -- 4 Q. Suffice it to say when you are looking at your 5 patient's mouth and you see a problematic or a 6 potentially concerning area -- 7 A. Yes. 8 Q. -- whether you think it's concerning at the time or 9 not, you document it? 10 A. Yes. 11 Q. And you document it by describing it? 12 A. Yes. 13 Q. And you describe it in terms of its size 14 presumably? 15 A. Location, size, color. 16 Q. So you document its size, location, color and 17 consistency, as well? 18 A. Description of it. Consistency, maybe. 19 Q. And that gives you a basis on future 20 examinations -- 21 A. Yes. 22 Q. -- to compare? 23 A. Yes. 24 Q. And if you then see a difference in it or a change 25 in it, it will motivate you to consider whether a 39 1 biopsy is needed, correct? 2 A. Correct. 3 Q. All right. And let's -- we don't need to restrict 4 our discussion to leukoplakic lesions. Let's talk 5 about lesions in general. That's the way you deal 6 with them, correct? 7 A. Yes. 8 Q. All right. And it also suggests that at the time 9 that you are looking at your patient's mouth, you 10 also find it necessary to look at your prior 11 records to see whether there's been a change, 12 correct? 13 A. Yes. 14 Q. It's fair to say that's an indispensable part of 15 your analysis, correct? 16 A. Correct, yes. 17 Q. And if you don't look at your prior records, you 18 can't tell whether there's been a change, correct? 19 MR. HATCHADORIAN: Objection. 20 A. It depends what was indicated there. 21 Q. Well, how many patients do you have? 22 A. I have no idea. 23 Q. You have -- you practice at the present time four 24 days a week? 25 A. Yeah. 40 1 Q. Eight hours a day, correct? 2 A. Yes. 3 Q. You see more patients than you can remember without 4 reference to your records in terms of what's going 5 on in their mouths, correct? 6 A. You know, when the -- 7 MR. HATCHADORIAN: Let him ask you a 8 question. 9 You didn't ask him a question. Go 10 ahead. 11 MR. HIRSHMAN: I did. 12 A. I didn't detect it. The question? 13 MR. HATCHADORIAN: What was the 14 question? 15 (Record read.) 16 MR. HATCHADORIAN: Can you answer that? 17 THE WITNESS: No, because it's too 18 general. 19 MR. HATCHADORIAN: Okay. Let him ask 20 you a question. 21 Q. Do you know what each of your patients' mouths 22 looked like six months ago? 23 A. In this category, yes. 24 Q. You don't need your records to know what your 25 patients' mouths look like? 41 1 A. I use them, but I don't need them probably. 2 Q. So you can recall without reference to your records 3 what each of your patients' mouths looked like a 4 year ago? 5 A. You're not -- 6 MR. HATCHADORIAN: Just answer his 7 question. 8 Q. Can you do that? 9 THE WITNESS: Well, he's saying two 10 different things to me, so what do I say? 11 A. Are you talking patients or patients with these 12 kinds of problems? Okay? 13 Q. Talk to me. 14 A. Are you talking about my patients or are you 15 talking about patients that have one of these 16 particular problems? 17 Q. I'm talking about patients where you've documented 18 some sort of a lesion in their mouth at some point 19 in time. 20 A. That patient will be back within six weeks to two 21 months. 22 Q. You make sure of that? 23 A. Yes. 24 Q. Because you want to follow those patients closely? 25 A. Yes. 42 1 Q. All right. And presumably you have patients who 2 have had lesions that were present in 1990? 3 MR. HATCHADORIAN: Have you had 4 patients with lesions in 1990? 5 THE WITNESS: See -- 6 MR. HATCHADORIAN: Just answer his 7 question. 8 THE WITNESS: Not with lesions, no. 9 MR. HATCHADORIAN: Just tell him that. 10 A. No. 11 Q. No lesions were present in any of your patients' 12 mouths in 1990? 13 A. Are you saying my present patients had a lesion in 14 1990? 15 Q. Do you have any patients that you have that you had 16 in 1990? 17 A. Yes, I had patients in 1990. 18 Q. And some of them are still your patients? 19 A. That's right. 20 Q. And are you suggesting to me that none of them had 21 any sort of a lesion that you marked down in your 22 records? 23 A. No lesions. 24 Q. None of your present patients in 1999 were also 25 patients of yours in 1990 and were documented as 43 1 having a lesion? 2 A. As far as I can remember, there are no patients in 3 my practice today that had lesions in 1990 that are 4 with me now. 5 Q. You can remember that? 6 A. Yes, I can. Yes, I can. 7 Q. It's remarkable. 8 A. Yeah. 9 Q. Do you think most people can do that? 10 A. I don't know. I may not remember some things, but 11 I remember that. 12 Q. And notwithstanding that fact, when you follow a 13 patient with a lesion, you review your records? 14 A. I really am getting tired of hearing the word 15 lesion because you're talking one thing and asking 16 me another. And the word "lesion," you have to 17 define it. You went from leukoplakia to lesion and 18 now you're pressing the lesion, the word, and they 19 are two different things in my mind. So when 20 you're asking me a question about a lesion that was 21 back there in 1990, I'm absolutely sure there is 22 nobody in my practice that I was aware of a lesion, 23 in 1990, that is in my practice today. 24 Q. Let's talk about mucosal defects that you find of 25 sufficient noteworthiness to put in your notes. 44 1 Let's talk in terms of mucosal defects. 2 A. Okay. 3 Q. Since the word lesion seems to be one you don't 4 feel comfortable with. 5 A. That's right. 6 Q. All right. Presumably there are mucosal defects 7 that you -- 8 A. I'm not going to accept that word, either. 9 MR. HATCHADORIAN: Let him finish his 10 question. 11 A. A defect -- a mucosal defect, to me, can be 12 anything. 13 Q. Let's talk about it. What is it that you find of 14 sufficient -- what types of mucosal entities do 15 you, in your practice, make note of in your 16 records? We'll use your terminology. 17 A. Lump or bump. An area that could possibly be a 18 burn or an ulcer. An area that could be damaged 19 for one reason or another. 20 Q. Meaning a breakdown in the mucosa? 21 A. It's hard to differentiate between whether someone 22 has injured a spot or if there's a viral 23 involvement there, so it's a matter of time to see 24 how that responds. So I make a note of it and I 25 usually mention to the patient, "If this isn't gone 45 1 in ten days, give me a call." 2 I think another thing that -- see, I can't 3 say this. I really feel frustrated here. 4 MR. HATCHADORIAN: Just answer his 5 question to the best of your ability. 6 A. We are talking about areas that probably have 7 appeared in my office as far as suspicious areas 3 8 times in 38 years, maybe 5 times. So you're trying 9 to say what do I make a note of each time in the 10 practice? I would doubt whether or not there was 11 more than 5 times in 38 years that I saw something 12 that was suspicious. 13 Q. So it would only have been 5 times in 38 years that 14 you've made a notation -- 15 A. No. 16 Q. -- about something in your records -- 17 A. No. 18 Q. -- relating to the mucosa? 19 A. No, that is not what I said. 20 Q. That's what I'm trying to find out, what types of 21 items -- what types of conditions of the mucosa you 22 have found noteworthy to the point where you made 23 reference to them. 24 A. Okay. I answered those. 25 Q. You indicated lumps, bumps, burns, ulcers and 46 1 damaged mucosa; is that correct? 2 A. Uh-huh. 3 Q. Is that a yes? 4 A. Yes. 5 Q. Anything else? 6 MR. HATCHADORIAN: If you can think of 7 anything else, tell him. If you can't, tell 8 him you can't think of anything else. 9 MR. HIRSHMAN: He knows the rules. 10 A. I said color -- change in color. 11 Q. No, you didn't say that. Anything else? 12 A. Nothing, no. 13 Q. So when you see lumps, bumps, burns, ulcers, 14 damaged mucosa or changes in color, you typically 15 note them in your record? 16 A. Anything that I feel is abnormal, I note. 17 Q. All right. And when you see the patient on 18 subsequent occasions, you review those notes to see 19 whether the condition as it presently exists is the 20 same or different from the way it was when you made 21 those notations, correct? 22 A. That's right. 23 Q. All right. And why do you do that? 24 A. Why do I do that? 25 Q. Yeah. 47 1 A. To see if the condition has healed or it's 2 progressing into a more -- more of a problem. 3 Return to normal or will be causing more of a 4 problem. 5 Q. And as it relates to all of these lumps, bumps, 6 burns, ulcers, damaged mucosa and color changes, 7 you certainly don't remember each of those for each 8 of your patients as time progresses, do you? 9 A. No, no. 10 Q. Okay. That's why you have your records, correct? 11 A. That's why I have my records. 12 Q. Have you ever published anything -- 13 A. No. 14 Q. -- in the professional literature? 15 A. No. 16 Q. Have you ever had any patients in your practice who 17 had previously had oral cancer? 18 A. Previously? 19 Q. Let me start with a more general question. We'll 20 work our way down. 21 Have you ever had a patient in your practice 22 with oral cancer at any time? 23 A. Yes. 24 Q. Okay. Have you ever had a patient who was 25 diagnosed as having oral cancer by virtue of a 48 1 diagnostic process that you initiated? 2 A. No. 3 Q. All right. So none of the patients in your 4 practice with oral cancer had lesions which you 5 noted and then caused to be further evaluated? 6 A. That's right. 7 Q. How many patients in your practice have had -- have 8 been oral cancer patients? Let's put it that way. 9 MR. HATCHADORIAN: In 38 years? 10 MR. HIRSHMAN: Yes. It may be a large 11 number and he may be unable to tell me. I 12 don't know. It may be a small number. 13 A. One actually in my practice. Another that was in 14 my practice who left who -- 15 MR. HATCHADORIAN: The question is how 16 many. Two, three? 17 A. One, as far as I can remember. 18 MR. HATCHADORIAN: He wants to know how 19 many patients you have seen in 38 years that 20 have had oral cancer. 21 A. While I'm treating them? I'm trying to think 22 whether I've had anybody come in that -- I don't 23 think anybody had it. 24 No, one. 25 Q. I thought I heard you say one in your practice and 49 1 one who left your practice, so that's two? 2 A. No. One who left and had -- 3 Q. One who had left and had oral cancer diagnosed 4 after he left? 5 A. After he left, yes. 6 Q. Did the one that left and had oral cancer diagnosed 7 after that person left have it diagnosed within a 8 year of leaving your practice? 9 A. Oh, no, no. 10 Q. Many years later? 11 A. Many years later. 12 Q. Was there a lesion that you were following? 13 A. No. The only reason that I remember that is that 14 it was father and son, and I used to always tell 15 the father about his smoking habits. And his son 16 came back and told me that he had been diagnosed 17 with that, which is not relevant, I guess. 18 Q. So there was one patient who had oral cancer that 19 was in your practice? 20 A. That was in my practice, yes. 21 Q. Was there a lesion that you -- was there anything 22 on their mucosa -- 23 A. No. 24 Q. -- that you ever noted? 25 A. No. It was the parotid gland. 50 1 Q. In the parotid gland, okay. Were there any 2 patients of yours -- so other than that, you're 3 aware of no other oral cancer patients in your 4 practice? 5 A. That's right. 6 Q. Did you ever have a patient in your practice who 7 had previously had an oral cancer? 8 A. I was trying to think of that. I don't believe so. 9 In fact, no. I would say no because I would have 10 followed them. 11 Q. Because you would have what? 12 A. I would have remembered. I would have remembered 13 because it would have been more treatment or 14 thoughts given to it. No is the answer. 15 Q. So if you had had such a patient in your practice, 16 the obvious -- that patient obviously would have 17 been somewhat of specific noteworthiness to you? 18 A. Yes. 19 Q. And you would have followed such a patient 20 carefully, would you not have? 21 A. I certainly would. 22 Q. And you would have been on a heightened level of 23 awareness for such a patient, wouldn't you have? 24 A. Yes, I would have. 25 Q. Because it's a well-known fact that once a patient 51 1 has had oral cancer, their risks of having a second 2 oral cancer are significantly higher than the 3 population at large? 4 MR. RYMOND: Objection as to the term 5 "significant" without a definition. 6 You can answer. I'm just objecting for 7 the record. 8 A. I didn't like the question as far as "it's a 9 well-known fact." I don't know what you mean by 10 that. 11 Q. You would agree that patients who have previously 12 been diagnosed with oral cancer are at higher risk 13 of having another oral cancer? 14 A. I have no opinion on that, I don't think. Higher 15 risk than what? 16 Q. Than the population at large. That was the 17 question. 18 A. I don't have an opinion on that. 19 Q. Why do you watch them carefully? 20 A. Why do I watch them? 21 Q. Why would you watch such a patient more carefully? 22 A. Well, I think it's my duty. 23 Q. All right. Let me take a look at what you've 24 brought with you here to the deposition, if I 25 could. 52 1 A. What do you want to -- 2 Q. I'd like to look at whatever it is that you've 3 generated and what you've reviewed. 4 A. Well, I reviewed the ones that are listed there. 5 These are the records of Dr. Whelan, his office 6 records. This is my letter and this was my -- this 7 is kind of like my cheat sheet, which is actually 8 just a way of taking his records and putting them 9 out in one sequence so that I can see the dates and 10 the appointments. 11 Q. When you say "his records," you're talking about 12 Dr. Whelan's? 13 A. Dr. Whelan's. 14 Q. Let's me start with this pile here, if I could, and 15 just take a quick look at it. 16 (Mr. Hatchadorian left the room.) 17 MR. HIRSHMAN: He's gone. I'm not 18 going to talk or ask you questions in his 19 absence. 20 (Mr. Hatchadorian entered the room.) 21 Q. Did you receive any -- you received Dr. Whelan's 22 deposition, I take it? 23 A. Yeah. 24 MR. HATCHADORIAN: I didn't. It's over 25 here. 53 1 Q. Did you receive any summaries of his deposition? 2 A. Summaries? 3 MR. HATCHADORIAN: I don't think so. 4 A. No. 5 Q. Your testimony is you received no summary of 6 Dr. Whelan's deposition? 7 A. This is what I've received, so -- 8 Q. And what you have just produced for me and said 9 that this is what you received -- 10 A. Yeah. 11 Q. -- is the transcript of Dr. Whelan's deposition, 12 correct? 13 A. That's right, and his records. You know, his -- 14 copies of his office records. 15 Q. So you received no summary of his -- 16 A. Summary, no. 17 Q. I'm looking at Mr. Hatchadorian's letter, Page 2, 18 and it says, For your information, I have enclosed 19 a summary of the deposition of Dr. Whelan -- let me 20 start all over. 21 "For your information, I have enclosed a 22 summary of the testimony of Dr. Whelan's deposition 23 along with a copy of reports from two experts who 24 are testifying on behalf of the Plaintiff." 25 Where is that summary? 54 1 A. I thought this is the summary. 2 MR. HIRSHMAN: I don't know. Matt may 3 not have put it in the letter, I don't know. 4 A. I don't know. Is this the summary of the 5 deposition? 6 MR. HATCHADORIAN: No, that's not the 7 summary. 8 MR. HIRSHMAN: Let's mark 9 Mr. Hatchadorian's letter as Exhibit 3. 10 (Nahigian Exhibit 3 was marked.) 11 Q. Exhibit 3 is an October 15th, 1998 letter that you 12 received from Mr. Hatchadorian? 13 MR. HATCHADORIAN: Yeah. 14 A. Yeah. 15 Q. I'm looking at a letter dated January 12th, 1999, 16 which is a letter written by you, is it not? 17 A. Yes, it is. 18 Q. And it's addressed to Mr. Hatchadorian? 19 A. That's right. 20 Q. And it is, in fact, an initial draft of your letter 21 of March 17th, 1999, isn't it? 22 A. You know, when I left this morning -- yes. 23 MR. HATCHADORIAN: Let him ask the 24 question. 25 A. Yes. 55 1 MR. HIRSHMAN: It will be marked as 2 Exhibit 4. 3 (Nahigian Exhibit 4 was marked.) 4 Q. So Exhibit 4 is, in fact, your initial draft of 5 your letter which was ultimately sent on March 6 17th, 1999? 7 MR. HATCHADORIAN: Yes, that's what 8 that is. 9 A. Yes. 10 MR. HIRSHMAN: All right. I don't want 11 to destroy your system here, so I'll put 12 these in three different piles and you may 13 arrange them whatever way you want. 14 MR. HATCHADORIAN: This is Whelan's 15 deposition. This is Lane's deposition. 16 These are all the things you reviewed. 17 MR. HATCHADORIAN: Toby, he has to 18 leave at 1 o'clock. You do the best you can 19 do. We'll have to reconvene. He has a 20 patient at 1:30. 21 (Mr. Hatchadorian left the room.) 22 MR. HIRSHMAN: Now, let's talk about 23 Dr. Callahan. 24 THE WITNESS: Do we have to wait for 25 him to come back? 56 1 MR. HIRSHMAN: No, I'm not going to be 2 asking any questions about Dr. Callahan. I 3 have a pile of records here. I'll tell you 4 how many pages they are. 15 pages in 5 length. 6 (Mr. Hatchadorian entered the room.) 7 Q. Are these the records of Dr. Kirby that you 8 reviewed? 9 A. No. 10 MR. HATCHADORIAN: Dr. Whelan? 11 Q. Dr. Whelan, excuse me. Are those the records of 12 Dr. Whelan that you reviewed? 13 A. Yes. 14 Q. Is that the complete set of materials of Dr. Whelan 15 that you reviewed? Let me ask -- that's not a very 16 well asked question. 17 Are there any other materials from 18 Dr. Whelan's chart, in addition to those 15 pages, 19 that you reviewed? 20 A. I don't believe so. 21 MR. HIRSHMAN: All right. What's the 22 next exhibit? Mark these as Exhibit 5. 23 (Nahigian Exhibit 5 was marked.) 24 Q. Lastly, let me take a look at your sheet there. 25 When did you make these -- well, let's mark it 57 1 first and then we'll know what we're talking about. 2 A. I was not aware that -- 3 MR. HATCHADORIAN: Just answer his 4 question. 5 MR. HIRSHMAN: The next number is 6. 6 (Nahigian Exhibit 6 marked for 7 identification.) 8 Q. I'm showing you Nahigian Exhibit 6. 9 A. Yes. 10 Q. That is a set of notes that you prepared? 11 A. Yes. 12 Q. In regard to this case? 13 A. Uh-huh. 14 Q. That's a yes, right? 15 A. Yes. 16 Q. And when did you prepare those? 17 A. Over the last two days. 18 Q. All right. In the right-hand corner it says, I 19 believe -- why don't you read for me what that 20 little notation is there in the right-hand corner. 21 MR. HATCHADORIAN: Do you want to give 22 him Dr. Whelan's notes back? You took them 23 and marked them and he needs to refer to 24 that. 25 MR. HIRSHMAN: Right now I've only 58 1 asked him to read the top right-hand corner 2 of his notes. Right, not left. 3 THE WITNESS: Oh, right here? 4 MR. HATCHADORIAN: You want to know 5 what it says? 6 MR. HIRSHMAN: Correct. 7 A. It says, "Job is to justify Dr. Whelan's 8 treatment." 9 Q. Can I have that for a second? What does that mean 10 to you? 11 A. That's why I'm here today. And I wanted to -- 12 MR. HATCHADORIAN: Just answer his 13 questions. 14 Q. Here we go. Doctor, what is dysplasia? 15 A. Change of tissue, cellular -- the change of 16 cellular description, I guess. 17 Q. What is its significance as it relates to cancer, 18 if any? 19 MR. HATCHADORIAN: If you know. 20 Q. You're not here as a cancer specialist? 21 A. Yeah, I'm not. I have no opinion on that. 22 MR. MORIARTY: I'm sorry, what did you 23 ask him, Toby? 24 MR. HIRSHMAN: What is the significance 25 as it relates to cancer. 59 1 MR. MORIARTY: Which? 2 MR. HIRSHMAN: Dysplasia. 3 MR. MORIARTY: Thank you. 4 Q. Have you ever seen an oral cancer in your practice? 5 A. Yes. 6 Q. The one we talked about before? 7 A. Yes. 8 Q. How did it present to you? Did you discover it or 9 was it discovered by someone else? 10 A. It was discovered by someone else. 11 Q. What happened to that patient, without telling me 12 who the patient was? 13 A. Passed away. 14 Q. What stage was it diagnosed at, do you know? 15 A. A small lump in the parotid gland. 16 Q. So it was not a mucosal lesion? It did not present 17 as a mucosal -- 18 A. It did not present as a mucosal -- 19 Q. Describe for me, if you can, what a mucosal cancer 20 of the mouth looks like. 21 MR. HATCHADORIAN: And I'm going to 22 object. 23 Q. If you can. 24 A. There are many lesions that are of different 25 descriptions, so I'm not going to get into that, 60 1 either. 2 Q. So it's fair to say that not all cancers of the 3 mouth that are mucosal cancers present as a rolled 4 -- as a ulcerative lesion with a rolled border? 5 A. I have no opinion on that. 6 Q. There are various issues in this case regarding 7 what's called causation; whether or not, for 8 instance, a cancer or a precancerous lesion, if 9 diagnosed at a particular time, would have resulted 10 in a different outcome. 11 Can I understand the scope of your testimony 12 is not including any opinions on the issue of 13 causation? 14 A. Yes, I think you can understand that. 15 Q. You don't hold yourself out as an expert -- 16 A. That's correct. 17 Q. -- on the development of cancer? 18 A. That's correct. 19 Q. And you're not going to be offering any opinions at 20 trial on that issue? 21 A. That's right. 22 MR. HATCHADORIAN: This is off the 23 record. 24 (Discussion off the record.) 25 Q. Now, during Dr. Whelan's deposition he was asked 61 1 questions about Cathleen and whether she was 2 responsible for the injuries that she sustained. 3 In other words, did she contribute to her injuries 4 by any delay or inappropriate conduct on her part. 5 And Dr. Whelan had no criticism of her, as I 6 remember. 7 Is that your recollection of his testimony? 8 A. I don't recall that. 9 Q. All right. Well, do you have any criticism of 10 Cathleen Lane? 11 A. That's not why I'm here. 12 Q. So you will not be criticizing Cathleen Lane and 13 her conduct? 14 A. No. 15 Q. Correct? 16 A. Correct. 17 Q. All right. In your report you discuss how the 18 existence of other dental and medical specialists 19 who were seeing Cathleen -- 20 MR. HATCHADORIAN: Where are you 21 reading, Toby? 22 MR. HIRSHMAN: Paragraph 2, the first 23 paragraph after the listing of the things he 24 reviewed. 25 MR. HATCHADORIAN: Okay. 62 1 Q. You indicate how the fact that Cathleen was seeing 2 other medical specialists and dental specialists 3 relieved Dr. Whelan of a heightened responsibility; 4 is that correct? 5 A. That's right. 6 Q. In other words, we can agree that in the absence of 7 -- in other words, by virtue of the fact that she 8 was a prior oral cancer patient, there was a 9 heightened level of scrutiny that was required to 10 be exercised by somebody, correct? 11 A. By somebody? 12 Q. Somebody. 13 MR. HATCHADORIAN: Do you understand 14 the question? 15 Q. Don't look at Mr. Hatchadorian. 16 MR. HATCHADORIAN: Do you understand 17 the question? 18 A. Reword it, because this is the second time this 19 question has come to me and the first time -- I 20 think it's confusing to me on what you're talking 21 about, the heightened -- whether -- ask the 22 question again, okay? Let me think what you're 23 saying. 24 MR. HIRSHMAN: I think I'll have the 25 court reporter read it back. See if that 63 1 helps and if not, I'll rephrase it. 2 (Record read.) 3 MR. HATCHADORIAN: I think he's 4 confused, Toby. You mentioned certain parts 5 of the letter and I don't know if you're 6 asking the question in the context of the 7 letter or -- you asked him the question 8 before about whether or not you have a 9 heightened responsibility if somebody has 10 cancer before, so what's the question? 11 Q. And what is your response? Is there a heightened 12 level of responsibility with caring for a patient 13 who has a prior history of oral cancer? 14 A. I would think each patient has the same attention. 15 Somebody who has had previous history of cancer 16 would make me more attentive. 17 Q. All right. 18 A. Okay. 19 Q. So in your report you suggest that Dr. Whelan was 20 relieved of that additional level of attention by 21 virtue of the fact that Cathleen was being seen by 22 other dental and medical specialists? 23 A. That's correct. That's correct. 24 Q. Okay. What role do family dentists play in the 25 diagnosis of oral cancer? 64 1 A. Well, I think they play an important role. 2 Q. We agree that they're essentially the front line in 3 the effort to diagnosis such cancers at an early 4 time, would you not? 5 A. Well, with my experience, the only other one that 6 I've had was not done by a dentist, so it is hard 7 for me to say that's always the case. But since 8 we're looking in the mouth all the time -- front 9 row? 10 Q. Front line. 11 A. Front line. I think the patient is the front line. 12 If they bring the problem to us, then we become the 13 next in line. 14 Q. It's an important role -- 15 A. It's an important role. 16 Q. -- that the dentist plays? 17 A. That's right. 18 Q. Now, what conversations occurred that you're aware 19 of between Cathleen and Dr. Whelan where Cathleen 20 revealed to Dr. Whelan that she was being treated 21 by multiple specialists on a regular basis, which I 22 think is the language you use in your report; 23 "multiple specialists," "regular basis"? 24 A. Well, it appeared -- where does it appear? 25 Q. What is it that you are saying? 65 1 A. Well, in her deposition she stated that. 2 Q. All right. What did she say? 3 MR. HATCHADORIAN: If you remember. 4 Q. I presume you remember. 5 A. The thing I remember is that she said I'm coming to 6 you to have my teeth taken care of and I'm being 7 seen by other people. So where that is in there, I 8 have no idea. 9 Q. So it's your contention that Cathleen, in essence, 10 said to Dr. Whelan, I'm not -- I don't want you 11 worrying about the cancer, I have other people 12 dealing with that issue? 13 MR. HATCHADORIAN: Objection. 14 Q. Is that what you're suggesting? 15 A. No. 16 Q. All right. What specialists were Cathleen seeing 17 on a regular basis during the period of time -- 18 A. Oh, I don't remember that. 19 Q. -- from 1990 to August of 1995? 20 A. I think she was being seen by different ones, if I 21 recall. 22 Q. More than one? 23 A. More than one, I believe. Yeah, yeah. 24 Q. What areas of specialization were they in? 25 MR. HATCHADORIAN: If you know. 66 1 A. I think one was oral surgery. The other was 2 oncology, I think it was. 3 Q. Who was the oral surgeon that she was seeing? 4 A. I don't remember. 5 Q. Who was the oncologist she was seeing? 6 A. I don't remember which one it was. 7 Q. I want you to assume that she was seeing neither an 8 oral surgeon nor an oncologist in the period of 9 time from 1990 through August of 1995. How would 10 that change your opinions regarding the 11 responsibilities of Dr. Whelan to be on a 12 heightened level of alertness? 13 MR. HATCHADORIAN: Objection to the 14 form of the question. 15 Q. You can answer. 16 MR. HATCHADORIAN: Would it change your 17 opinion? 18 A. No. 19 Q. So whether Cathleen was seeing other medical 20 specialists or not, it would still be your opinion 21 that Dr. Whelan did not have a heightened level of 22 vigilance as his responsibility? 23 A. I don't like the question, so I won't answer that. 24 You've -- 25 MR. HATCHADORIAN: Can you answer the 67 1 question? 2 THE WITNESS: No, I'm not going to 3 answer the question. 4 MR. HATCHADORIAN: You have to answer 5 it, if you can. 6 MR. HIRSHMAN: It's not a matter of 7 whether you want to answer it or not. 8 MR. HATCHADORIAN: Do you understand 9 what he's asking you? 10 A. I don't understand what you're saying at all. 11 Q. Okay. Then we'll rephrase it. If you don't 12 understand, you don't have to answer it, you're not 13 required. If you don't like it, that's another 14 thing. 15 I want you to assume -- 16 A. I don't assume anything. 17 Q. You're being asked to assume certain facts and 18 that's something that I am sometimes -- it's 19 something that's done frequently in the course of 20 litigation. 21 A. All right. 22 Q. I'll ask you a certain set of assumptions and ask 23 for your opinion based on those assumption, okay? 24 A. All right. 25 Q. I want you to assume that Cathleen was seeing no 68 1 medical specialists between 1990 and 1995 when 2 Dr. Whelan retired. What would that do with 3 Dr. Whelan's support toward this patient, Cathleen 4 Lane? 5 A. I don't want to answer an assumption. I mean, if I 6 have to, I have no opinion. 7 Q. You have no opinion? 8 A. I have no opinion. I have no opinion on an 9 assumption because that changes the whole 10 situation. 11 Q. Well -- 12 A. Now, if you want to -- 13 Q. I'm asking you to assume those facts and ask you 14 whether you have an opinion based on those facts. 15 A. I have no opinion. 16 Q. You have no opinion? 17 A. No. 18 Q. Okay. And I want you to assume now that the only 19 doctor that Cathleen was seeing during that period 20 of time besides a dentist was an ENT, no 21 oncologist, no oral surgeon. Do you have an 22 opinion -- 23 A. I don't. 24 Q. -- as to what Dr. Whelan's level of vigilance would 25 be under those circumstances? 69 1 A. No, I don't. 2 Q. No opinion? 3 A. No opinion. 4 Q. Okay. Now, Dr. Whelan saw Cathleen on May 2nd, 5 1990, did he not? 6 A. Pardon me? 7 Q. Dr. Whelan saw Cathleen on May 2nd, 1990, did he 8 not? 9 A. I'd have to look that up. May 2nd? 10 Q. May 2nd, 1990. 11 A. I don't have that here. I've got July 5th, 1990. 12 MR. HATCHADORIAN: Apparently that's 13 not in here. 14 Q. The 15 pages of Dr. Whelan's records that you have 15 does not include a May 2nd, 1990 office visit, 16 correct? 17 A. No. 18 MR. HATCHADORIAN: What did you say, 19 April 2nd? 20 MR. HIRSHMAN: May. 21 A. No, I don't have any May 2nd. 22 MR. HATCHADORIAN: April 2nd. 7-5, 23 10-8-89. 4-2-90, no. 4-2-90 is what he has 24 in his records. 25 MR. HIRSHMAN: You don't have May 2nd? 70 1 MR. HATCHADORIAN: That's as late as he 2 has. 3 MR. HIRSHMAN: No, this is -- I'll see 4 if I can find it in my set. 5 MR. HATCHADORIAN: All right. 6 (A discussion was had off the record.) 7 MR. HATCHADORIAN: Okay. If that's 8 what I sent you, that's what I have. 9 Q. May 2nd, 1990. I thought you -- you've got none of 10 these records with the horizontal lines? 11 A. No. 12 Q. There's a May 2nd, 1990 entry there, is there not, 13 in my records of Dr. Whelan that I presented you 14 with? 15 A. Yeah. 16 Q. Okay. This is the first time -- 17 A. Yeah. 18 Q. -- you've seen the May 2nd entry? 19 A. Yes. I have not seen any of these entries. 20 Q. None of the entries that are on sheets of paper 21 with horizontal lines? 22 A. Yeah. 23 Q. Do you know what those horizontal lined sheets of 24 paper represent, what kind of entries those are? 25 MR. HATCHADORIAN: How would he know if 71 1 he hasn't seen the records? 2 Q. Maybe you know what types of entries those are from 3 what I just showed you. 4 A. Well, I don't know who did it or who it's from. 5 You showed me a line with a date on it. 6 Q. Do you want to take a look at it? Here. 7 A. It must be a form of his record if this is his. 8 Since I don't do it that way -- I don't know how he 9 does it. 10 MR. HIRSHMAN: All right. 11 (Mr. Hatchadorian conferred with the 12 witness off the record.) 13 Q. In Paragraph 3 of your letter you write -- the last 14 sentence -- 15 MR. HATCHADORIAN: Do you want this 16 back? 17 MR. HIRSHMAN: Yeah, I'll take that. 18 Q. You write, "Dr. Whelan did exactly this by 19 referring her out to specialists fulfilling his 20 duty as a general dentist." 21 What referral are you making reference to? 22 A. When he referred out for biopsy. 23 Q. In 1994? 24 A. 1994. 25 Q. Are you making reference to any other date, other 72 1 than May or June 1994? 2 A. No. 3 Q. Then you say in Paragraph 4, "The referral by 4 Dr. Whelan did not deviate from the appropriate 5 care that is expected of a general dentist." That 6 referral that is made reference to in that 7 paragraph is also the 1994 referral? Last 8 paragraph. 9 A. The last paragraph? I don't see where you are. 10 Q. The sentence -- the first sentence, "Therefore." 11 MR. HATCHADORIAN: "Upon careful 12 consideration." 13 A. The events, is that what you're talking about? The 14 events or the referral? 15 Q. I'll read the whole sentence. "Therefore, upon 16 careful consideration of the events that transpired 17 over Dr. Whelan's sixteen-year treatment of 18 Mrs. Lane, the progression of Mrs. Lane's battle 19 with cancer, the referral by Dr. Whelan did not 20 deviate from the appropriate care that is 21 expected" -- 22 A. Yeah. 23 Q. -- "of a general dentist." 24 A. Yeah. 25 Q. The referral that you're making reference to again 73 1 is the 1994 referral? 2 A. There's no referral there. It says in 3 consideration of the events. What I mean, that is 4 the treatment of the -- 5 Q. The last phrase. The last phrase is the referral 6 by Dr. Whelan. Do you see that? 7 Are you looking at the March 17th letter? 8 A. Yeah, but are you looking at the last paragraph or 9 are you looking at the second to the last 10 paragraph? 11 Q. The last paragraph. 12 A. Okay. The referral did not deviate from the 13 appropriate care? 14 Q. Correct. 15 A. Now, what are you asking me about that? 16 Q. What referral are you referring to? 17 A. You know, that's -- "Therefore" -- 18 MR. HATCHADORIAN: Did you mean to 19 state treatment when you said referral? 20 MR. HIRSHMAN: Now, come on. 21 MR. HATCHADORIAN: I'm just trying to 22 find out whether or not -- we're not here 23 all day. 24 A. When you refer to referral, I don't know if you're 25 pulling this out of context or -- 74 1 MR. HATCHADORIAN: No, he's reading 2 what you wrote in your report. 3 A. He's reading ". . . sixteen-year treatment . . . 4 with cancer, the referral by Dr. Whelan did not 5 deviate." 6 No, I'm saying -- oh, that part of it, does 7 it refer to that? That particular part refers to 8 his referral out to the -- for the biopsy. 9 Q. So -- 10 A. Okay. 11 Q. In the last paragraph the use of the word 12 "referral" is a reference to the 1994 biopsy 13 performed? 14 A. Correct. 15 Q. By Dr. Katz? 16 A. I don't know if it was Dr. Katz. 17 Q. You don't know who did the biopsy? 18 A. I don't have that in front of me, no. 19 Q. But referring to the 1994 -- 20 A. 1994. 21 Q. -- referral for a biopsy? 22 A. Referral. 23 Q. All right. That's all I'm asking. 24 A. All right. 25 Q. Are you aware of any other referral made by 75 1 Dr. Whelan, other than the 1994 referral for a 2 biopsy? 3 A. I don't remember. I don't remember that. 4 Q. You don't remember any other? 5 A. No, not at this time. 6 Q. Okay. Let's look at Paragraph 2 of your letter for 7 a second, the one that starts, "As a practicing 8 family dentist for 38 years." 9 You make reference to these multiple 10 specialists that we already talked about who were 11 supposedly following Cathleen. I'm going to 12 suggest to you -- I'm going to ask you to assume 13 that the only such specialist was a Dr. Katz -- 14 Dr. Robert Katz, and that Dr. Katz is an ENT, all 15 right? That is who was following Cathleen besides 16 Dr. Whelan. 17 MR. HATCHADORIAN: When are you talking 18 about? 19 MR. HIRSHMAN: From 1991 until 20 Dr. Whelan's retirement, all right, in 21 August of 1995. 22 Q. And it's your contention and opinion in this case 23 that Dr. Whelan was relieved of his heightened 24 responsibility because of that care that was being 25 -- and monitoring that was supposedly occurring 76 1 through Dr. Katz; is that correct? 2 MR. NORCHI: I'm going to object. Just 3 note an objection for me, please. 4 MS. PETRELLO: Same with me. 5 Q. If Dr. Katz, an ENT, was following Cathleen, did 6 that relieve Dr. Whelan of his responsibility? 7 A. I have no opinion. 8 Q. You have no opinion on that? 9 A. No. 10 Q. There's a quote in your letter in Paragraph 2 where 11 it says, "In her deposition, she" -- referring to 12 Cathleen -- "also stated that she had simply sought 13 to have Dr. Whelan, quote, 'take care of her 14 teeth.'" Do you see that? 15 A. Uh-huh. 16 Q. Is that a quote from her deposition? 17 A. Yeah, yes. 18 Q. Can you find that for me, please? 19 MR. HATCHADORIAN: It's over there. 20 Just leaf through it. 21 MR. HULME: Do you have the exhibit 22 that was his first draft report? 23 MR. HIRSHMAN: Yeah. 24 (MR.) HULME: Do you need it right now? 25 MR. HIRSHMAN: No. 77 1 THE WITNESS: This -- is this hers? 2 Where did it go? I'm not sure if this is 3 even -- 4 MR. RYMOND: Well, that's it, but there 5 may have been -- I don't know. 6 A. No, let's look. I would have thought it would -- 7 Q. That's the only one you've reviewed, correct? 8 A. Yeah. If this is -- you don't put the thing -- 9 you've got her and versus -- 10 (Mr. Hatchadorian left the room.) 11 THE WITNESS: I have no idea where it 12 would be. 13 (Mr. Hatchadorian entered the room.) 14 MR. HATCHADORIAN: Do you know what 15 page it's on? 16 MR. HIRSHMAN: We're on the record 17 here. Yeah, I know where it is. It's in 18 your head because it's not in the 19 transcript, as far as I can find. 20 MR. HATCHADORIAN: I remember reading 21 it. 22 MR. HIRSHMAN: Well, maybe it is and 23 maybe I missed it, but I'd sure like to see 24 it. 25 A. If it is, I'll sure take an apology for that one. 78 1 It's not in my head. 2 (The witness conferred with 3 Mr. Hatchadorian off the record.) 4 MR. HIRSHMAN: If it's there, I want to 5 see it, and if it's not, I want to know 6 that, too. 7 MR. HATCHADORIAN: I remember reading 8 it myself. 9 MR. HIRSHMAN: Go ahead. 10 THE WITNESS: It may have been -- 11 MR. HATCHADORIAN: Just keep going 12 through it. 13 MR. RYMOND: There may be an index in 14 there which may be helpful, I don't know. 15 MR. HIRSHMAN: Yeah, there may be an 16 index. 17 THE WITNESS: What would it say? 18 MR. HIRSHMAN: You'd have to look under 19 the words. 20 MR. HIRSHMAN: You can look up "take," 21 "care," "teeth" or you can look page by 22 page. 23 THE WITNESS: Can I say what I said to 24 you? 25 MR. HIRSHMAN: Let's go off the record 79 1 and see if it's in there. 2 (A discussion was had off the record.) 3 Q. Page 21 of Cathleen's deposition is where you got 4 the quote that is at the end of the second 5 paragraph of your letter? 6 MR. HATCHADORIAN: We can't find the 7 quote that's in there. This is what we 8 found that is very similar. In the interest 9 of time, we're going to tell you what it 10 says. 11 MR. HIRSHMAN: Okay. Read that to me. 12 MR. HATCHADORIAN: Okay. It says -- 13 MR. HIRSHMAN: Page 21 of Cathleen's 14 deposition? 15 MR. HATCHADORIAN: Question: 16 "Sometimes that self-treatment helped?" 17 Answer: "Yes." 18 This is Cathleen's deposition. 19 "If it didn't correct itself within two 20 weeks, no longer than two weeks, I would go 21 back in and then it would happen again." 22 Question: "All right." 23 Answer: "Now, I have had a lot of 24 dental work." 25 Question: "A lot of what?" 80 1 Answer: "Dental." 2 "MR. HIRSHMAN: Dental." 3 Question: "Dental work?" 4 Answer: "Yes. I mean, Dr. Whelan 5 saved my teeth. You understand me?" 6 Question: "Dr. Whelan something." 7 "MR. HUPP: Saved your teeth?" 8 "THE WITNESS: Yes." 9 So she's saying that Dr. Whelan saved 10 her teeth. 11 Q. Dr. Nahigian, is that the quote that you used as 12 the basis for the sentence that appears in your 13 report that says, In her deposition, she also 14 stated that she had simply sought to have 15 Dr. Whelan take care of my teeth? 16 A. I'm not sure. 17 MR. HIRSHMAN: Okay. We'll move on. 18 MR. HATCHADORIAN: We'll keep looking. 19 A. I'm not so sure. 20 Q. You have not had an opportunity to review the 21 records of Dr. Kirby, I take it? 22 A. No. 23 Q. No? 24 A. No -- yes. Yes, I have not had the opportunity. 25 Q. All right. So you don't know what his role was in 81 1 Cathleen's care? 2 A. No. 3 Q. And you'll be offering no opinions at the time of 4 trial regarding the appropriateness of his care and 5 treatment? 6 A. That's right. 7 Q. You've had patients that you've referred to biopsy 8 -- for biopsy on what, four or five occasions? Is 9 that what -- 10 A. Yeah, probably. 11 Q. -- you were telling me? 12 And after doing so, did you get copies of 13 their biopsy reports? 14 A. Yes. 15 Q. Is that part of your file? 16 A. Yeah. 17 Q. And it's on the basis of those reports from the 18 pathologist that you satisfied yourself as to the 19 nature of the lesion? 20 A. Yes. 21 Q. Now, by virtue of having that report in hand, you 22 were able to determine what the pathologist's 23 interpretation was as to whether there was cancer 24 or not, correct? 25 A. Correct. 82 1 Q. And you were able to determine the pathologist's 2 opinions as to whether there was a dangerous 3 precancerous lesion or not? 4 A. Correct. 5 Q. And simply because the pathology report was 6 negative for cancer doesn't necessarily mean that 7 it would be negative for a severe dysplasia, does 8 it? 9 MS. PETRELLO: Objection. 10 A. I have no opinion on that. 11 Q. Well, severe dysplasia and cancer are two different 12 things, correct? 13 A. Severe dysplasia? 14 Q. Correct. 15 A. And can- -- I have no opinion on that. 16 Q. You don't know? 17 A. No. 18 Q. Suffice it to say, that under those circumstances 19 where a biopsy was done, in order to satisfy 20 yourself that there was no danger, felt it 21 necessary to look at the actual reports from the 22 pathologist? 23 MR. RYMOND: Objection. 24 MS. PETRELLO: Objection. 25 MR. RYMOND: You're referring to the 83 1 situation where he referred the patient to 2 biopsy? 3 MR. HIRSHMAN: That's what I'm 4 referring to. 5 A. Repeat that one. 6 (Record read.) 7 A. I always did. 8 MR. HIRSHMAN: I have no further 9 questions. Thank you. 10 MR. RYMOND: I have just one question. 11 CROSS-EXAMINATION OF ROBERT K. NAHIGIAN, D.D.S. 12 BY MR. RYMOND: 13 Q. I assume, based on the materials that you've 14 reviewed and the information that's been made 15 available to you, that you have no criticisms of 16 Dr. Callahan; is that a fair statement? 17 A. Yes, because I'm not aware of Dr. Callahan. 18 MR. RYMOND: Okay, thanks. That's all 19 I have. 20 MR. TRAVIS: Nothing. 21 MR. NORCHI: I have just a couple to 22 clarify. My name is Kevin Norchi and I 23 represent Dr. Katz. 24 25 84 1 CROSS-EXAMINATION OF ROBERT K. NAHIGIAN, D.D.S. 2 BY MR. NORCHI: 3 Q. Is it your testimony today that regardless of what 4 history a patient has when he or she presents to 5 you, it is still your obligation to perform an oral 6 examination? 7 A. Initially? You mean when they come in? 8 Q. Yes, sir. 9 A. Or routinely? 10 Q. Routinely. Well, let's do initially first. 11 A. If a patient would come into my office who had a 12 history of cancer, would I do an oral exam? 13 Q. Yes, sir. 14 A. Yes, I would. 15 Q. If that patient did not have a history of oral 16 cancer, would you still do an oral examination? 17 A. Yes, I would. 18 Q. So regardless of the history of oral cancer, you 19 would agree it would be appropriate for a dentist 20 to perform an oral examination, correct? 21 A. Yes. 22 Q. Is an oral examination something that you, as a 23 dentist, perform every time a patient comes in to 24 see you whether it's for restorative work or any 25 other reason? 85 1 A. No. 2 Q. Okay. Under what circumstance do you perform an 3 oral examination on a patient? 4 A. Generally when it's -- when they're in for their 5 six-month recall. 6 Q. Okay. So you try and see patients every six 7 months, correct? 8 A. Yes. 9 Q. So each visit, then, you would perform your oral 10 examination? 11 A. At the six-month interval or whatever their recall 12 appointment time is. 13 Q. It would sort of be, for a patient of an internist, 14 a well-care visit just to make sure that the 15 patient's mouth looks okay? 16 A. That's right, yeah. 17 Q. I'm sort of mixing metaphors there, but . . . 18 A. Yeah. 19 Q. In follow up to a question that Mr. Hirshman was 20 asking you with regard specifically about comments 21 made to Dr. Whelan by Cathleen Lane, let me ask you 22 this. Does Ms. Lane's comment that Dr. Whelan is 23 only to take care of her teeth relieve him of any 24 duty to perform an appropriate oral examination 25 when he sees her? 86 1 A. No. 2 Q. So regardless of her comment to him or whatever 3 testimony was with regard to only taking care of 4 her teeth, it's still your testimony that when 5 Dr. Whelan would see the patient for six-month 6 visits, that it would be his obligation to do an 7 oral examination, correct? 8 A. Yes. 9 MR. RYMOND: Okay. Thank you. 10 MR. HULME: I don't have any questions. 11 MS. PETRELLO: I don't have anything. 12 Thank you. 13 MR. HIRSHMAN: I have just have one. 14 MR. MORIARTY: Toby, before you say 15 anything, maybe it's not appropriate for me 16 to chime in, but I think it's clear from his 17 report that he doesn't have opinions about 18 the care in '95? He doesn't intend to 19 express opinions of the care in '95? 20 MR. HIRSHMAN: What are you making 21 reference to, Matt? 22 MR. MORIARTY: I'm making reference to 23 the comment in the last sentence of the 24 fourth paragraph. 25 MR. HATCHADORIAN: The first sentence 87 1 of the fourth paragraph? 2 MR. MORIARTY: "I offer" -- the last 3 sentence. "I offer my opinion that none of 4 her struggles were a consequence of any 5 neglect or mistreatment by Dr. Whelan." 6 I mean, you've restricted your 7 questions to the referral in '94. I hope 8 there's not some misunderstanding here. 9 MR. HIRSHMAN: I questioned regarding 10 the use of the word "referral," that's 11 correct. You're asking me to ask him more 12 questions? 13 MR. MORIARTY: Well, he's going to 14 testify at trial and what we're trying to 15 tell you is he's going to give you an 16 opinion at trial and that's the reason we're 17 here, is to find out what his opinions are. 18 And so we're telling you what is his opinion 19 that he's going to testify. 20 MR. HIRSHMAN: Let's talk about that. 21 I hate to do this, but I'll do it. 22 MR. MORIARTY: You don't have to, but I 23 just want to put you on notice that's what 24 he's going to say at trial. 25 88 1 RECROSS-EXAMINATION OF ROBERT K. NAHIGIAN, D.D.S. 2 BY MR. HIRSHMAN: 3 Q. Let's talk about Dr. Callahan. You've offered no 4 opinions on Dr. Callahan, but, in realty, you've 5 not seen anything in this case in terms of records 6 or depositions pertaining to Dr. Callahan, correct? 7 A. Correct. 8 Q. It's your opinion that Dr. Whelan in -- let's talk 9 about specific dates. 10 (The witness conferred with 11 Mr. Hatchadorian off the record.) 12 Q. All right. You didn't even have the records from 13 May 2nd, 1990. I take it you have no opinions as 14 to whether or not the care and treatment of 15 Dr. Whelan on May 2nd, 1990 comported with 16 acceptable standards of care? 17 A. That's correct. 18 Q. All right. Do you have records of Dr. Whelan from 19 November 8th, 1991? 20 A. Pull them out. We'll see what we've got. 21 MR. HATCHADORIAN: Yeah. 22 THE WITNESS: That's '92. 23 MR. HATCHADORIAN: Yeah, here's '91. 24 Yes. 25 A. November 8th did you say? 89 1 Q. I said November 8th, 1991. 2 A. Yes, I do. 3 Q. You have those records? 4 A. Yes, I do. 5 Q. And Cathleen at that time had a sore on the left 6 side of her tongue, did she not? 7 A. Yes. 8 Q. Could you tell me where on the left side of the 9 tongue that sore was? From the tip to the root 10 where along the left side it was? 11 MR. HATCHADORIAN: Just tell him what 12 the notes indicate. That's all you can tell 13 him. 14 A. It says along the left side of the tongue. 15 Q. So you can't tell me how close or how far it was 16 from the gingiva in and around Tooth 19, correct? 17 A. Correct. 18 Q. She was seen by Dr. Katz when in relation to that 19 visit, if you know? 20 A. Monday. 21 Q. The Monday before, correct? 22 A. It says, "Saw Dr. Katz Monday." 23 Q. Do you know whether a biopsy was done that Monday? 24 A. No, I don't. 25 Q. What, if anything, is your opinion as to what 90 1 Dr. Whelan's duty was at that time to Cathleen as a 2 patient? 3 A. I have no opinion. 4 Q. No opinion, okay. August 26th, 1992. Cathleen was 5 seen by Dr. Whelan, correct? 6 MR. HATCHADORIAN: We're trying to find 7 the records. 8 A. What's the date again? 9 Q. August 26th, 1992. 10 A. Okay, yeah. Okay. 11 MR. HATCHADORIAN: We've got it. 12 Q. Yeah. She had a soreness on the left side of her 13 tongue, did she not? 14 A. Yes. 15 Q. And it was bumpy, correct? 16 A. Bumpy, yes. 17 Q. Do you know how close or far that soreness and 18 bumpiness was on the left side of her tongue to 19 Tooth 19? 20 A. No. 21 Q. Was a biopsy done at that time? 22 A. It's not indicated here. 23 Q. It's not indicated in the record that biopsy was 24 done, correct? 25 A. Correct. 91 1 Q. Do you have an opinion as to whether an obligation 2 existed to do a biopsy? 3 A. No, I don't. 4 Q. You have no such opinion? 5 A. No. 6 Q. Okay. February 20th, 1995 -- 7 A. This is hard to read. 8 Q. -- she was seen by Dr. Whelan? 9 MR. MORIARTY: Excuse me, sir, 10 Mr. Hirshman, what date? 11 MR. HATCHADORIAN: February 20th, 1995. 12 Q. Do you have that record in front of you? 13 A. Yes. 14 Q. Four millimeter white, raised area around Tooth 19, 15 correct? 16 A. Correct. 17 Q. All right. There were also several bumpy spots 18 that were described just under the tongue on the 19 left border, correct? 20 A. Right. 21 Q. Can you tell me how close or how far those bumpy 22 spots were to Tooth 19? 23 A. No, I can't. 24 Q. Was a biopsy done? 25 A. No, not to my knowledge. 92 1 Q. Do you have an opinion as to whether or not a 2 biopsy should have been done? 3 A. No, I don't. 4 Q. No opinion, all right. Now 5-26-95. 5 Oh, wait a minute. You've got an opinion 6 here now? 7 A. I don't have an opinion as to whether it should be 8 done at that time, but it had just previously been 9 done six months -- 10 Q. It had just been previously done? 11 A. Six months earlier. 12 Q. A biopsy was done six months earlier and, in your 13 opinion, that was sufficient to not do another? 14 A. Yes. 15 Q. And it's because the same area had been biopsied 16 six months earlier, correct? 17 A. Correct. 18 Q. 5-26-95, you have that in front of you? 19 A. Yes, I do. 20 Q. She was seen by Dr. Whelan at that time, correct? 21 A. Correct. 22 Q. The left side of her tongue was again noted to be 23 sore, "SL" meaning sublingually, correct? 24 A. Correct. 25 Q. Can you tell me how close that was to Tooth 19? 93 1 A. No, I can't by this. 2 Q. Was a biopsy done? 3 A. No, not to my knowledge. 4 Q. Do you have an opinion as to whether a biopsy 5 needed to be done? 6 A. No opinion. 7 MR. HIRSHMAN: No opinion. No further 8 questions. 9 MR. HATCHADORIAN: You have an opinion. 10 MR. RYMOND: Nothing else. 11 MR. HIRSHMAN: Thank you, Doctor. 12 MR. HATCHADORIAN: Well, I think he 13 misunderstood you. 14 MR. HIRSHMAN: No, I don't think he did 15 and if you want to put new words in his 16 mouth, it's going to have to be at a 17 different deposition. I'm not going to sit 18 here and have you feed words to him -- 19 THE WITNESS: I don't think he did. 20 MR. HIRSHMAN: -- so I'm out of here. 21 MR. HATCHADORIAN: I think he 22 misunderstood the question, Toby. 23 MR. HIRSHMAN: No, he didn't. We went 24 through this. 25 MR. HATCHADORIAN: I'm just going to 94 1 tell you, you see what his report says? It 2 doesn't say he has to do a biopsy February 3 or May. 4 MR. HIRSHMAN: All right. Let's go 5 back on the record. 6 Q. Mr. Hatchadorian just reminded you that you do have 7 opinions, correct? 8 A. You have to tell me the subject. I have opinions. 9 Yes, I have a good opinion. 10 Q. We're talking about February of 1995 and we're 11 talking about May of 1995. 12 A. Okay. 13 Q. Mr. Hatchadorian just whispered something to you, 14 did he not? 15 A. I don't know what he whispered to me. 16 Q. Did Mr. Hatchadorian just have a conversation with 17 you? 18 A. Yes, he had a conversation with me. 19 Q. Now you have opinions, correct? 20 A. No. I'm not saying because of him talking to me I 21 have opinions, no. 22 Q. Now you have opinions, though? 23 A. Okay. 24 Q. What are your opinions now as it relates to May 25 26, 1995? Should a biopsy have been done? Do you 95 1 have an opinion on that subject? 2 A. Should it have been done? When you take everything 3 else into consideration, it was his -- it was his 4 thoughts at that time it was not necessary. 5 Q. And because it was his thought it was not 6 necessary, it's your thought that it was not 7 necessary, right? 8 A. I have to go by what the man has entered into his 9 record and he has stated that he believes that it 10 was inflammation and this area was not much 11 different than it was before. Yes, that's my 12 opinion, that Dr. Whelan's opinion was at that time 13 it was not necessary because approximately a year 14 before he had sent out for a biopsy and it was 15 done. 16 Q. And that biopsy was in the same location, correct? 17 A. You know, I don't know where the biopsy was taken. 18 Q. Well, assuming that it was done in a different 19 location, it wouldn't tell you much about the 20 location of suspicion, would it? 21 A. I have no record of showing that it was a biopsy of 22 the tongue, of the jaw or anything, and I have no 23 knowledge of that whatsoever. She was sent out for 24 a biopsy. 25 Q. All right. 96 1 A. And you centered in on 19. I don't have any record 2 of that. 3 Q. Well, if we assume the biopsy that was done -- 4 A. I don't assume anything. 5 MR. HATCHADORIAN: Wait a minute. Let 6 him finish his question. 7 Q. If we assume the biopsy in 1995 that was done was 8 of his finger, it won't be much relevance to Tooth 9 19, would it, Doctor? 10 A. I won't answer a question like that. 11 MR. HIRSHMAN: I'm done. I'm done. 12 THE WITNESS: If it was done to his 13 finger. 14 MR. HIRSHMAN: Does anybody have 15 further questions? 16 MR. RYMOND: Not I. 17 MR. HULME: Not I. 18 MR. HIRSHMAN: I'm going to take copies 19 -- going to take copies of all these 20 exhibits, and let me give them to the court 21 reporter. 22 (Deposition concluded at 12:45 p.m.) 23 (Signature not waived.) 24 - - - 25 97 1 I have read the forgoing transcript from Page 1 2 through 96 and note the following corrections: 3 4 PAGE LINE REQUESTED CHANGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ___________________________________ 20 ROBERT K. NAHIGIAN, D.D.S. 21 Subscribed and sworn to before me on this ____ 22 day of _________________, 1999. 23 ____________________________, Notary Public 24 25 My commission expires: ____________________________ 98 1 C E R T I F I C A T E 2 State of Ohio, ) ) SS: 3 County of Cuyahoga. ) 4 5 I, Judi Sadler, Registered Professional Reporter and Notary Public in and for the State of Ohio, duly 6 commissioned and qualified do hereby certify that the within named witness, ROBERT K. NAHIGIAN, D.D.S., was 7 by me first duly sworn to testify the truth, the whole truth, and nothing but the truth in the cause 8 aforesaid; that the testimony then given was by me reduced to stenotypy in the presence of said witness, 9 subsequently transcribed into typewriting, and that the forgoing is a true and correct transcript of the 10 testimony so given as aforesaid. 11 I do further certify that this deposition was taken at the time and place as specified in the 12 forgoing caption, and that I am not a relative, counsel or attorney of the parties or otherwise interested in 13 the outcome of this action. 14 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, Ohio, this 15 7th day of September, 1999. 16 _____________________________________________ 17 Judi Sadler, Registered Professional Reporter and Notary Public in and for the State of Ohio. 18 My commission expires October 16, 2003. 19 20 21 22 23 24 25