0001
 1                   IN THE COURT OF COMMON PLEAS
                       CUYAHOGA COUNTY, OHIO   
 2   
 3   C. JEAN THOMPSON,           )
     Individually and as         )     D E P O S I T I O N
 4   Administratrix of the       )
     Estate of Robert Thompson,  )             O F
 5   Deceased,                   )
                                 )        M A R T I N  H.
 6                 Plaintiff,    )             
                                 )      P O L E S K I, M.D.
 7             vs.               )             
                                 )  
 8   MARK MELAMUD, M.D., MARK    )
     MELAMUD, M.D., L.L.C.,      )  
 9                               ) 
                   Defendants.   )
10   -----------------------------
11                      A P P E A R A N C E S
12   For the Plaintiff:       Mr. Howard D. Mishkind
                              (via telephone)
13                            BECKER & MISHKIND 
                              1660 West 2nd Street, Suite 660
14                            Cleveland, Ohio 44113
15   For the Defendants:      Mr. John S. Polito
                              BONEZZI, SWITZER, MURPHY, POLITO &
16                            HUPP
                              1300 East 9th Street, Suite 1950
17                            Cleveland, Ohio 44114
18   
19   
20   
21   
22   Videographer:            Mr. Scott Moore     In Durham, N.C. 
23      Reported by:
24   October 3, 2008          Brandy Anderson Sadler
0002
 1   Stipulations                                           -2- 
 2                     S T I P U L A T I O N S
 3           It is hereby stipulated and agreed between the
 4   parties to this action, through their respective counsel of
 5   record:
 6           (1)  That the videotaped deposition of MARTIN H.
 7   POLESKI, M.D. may be taken on October 3, 2008, beginning at
 8   9:04 A.M. in the offices of DUKE UNIVERSITY MEDICAL CENTER,
 9   located at Erwin Road, Room 03149, Durham, North Carolina,
10   before Brandy Anderson Sadler, a Notary Public.
11           (2)  That the deposition shall be taken and used as
12   permitted by the applicable Ohio Rules of Civil Procedure.
13           (3)  That any objections of any party hereto as to
14   notice of the taking of said deposition or as to the time
15   or place thereof, or as to the competency of the person
16   before whom the same shall be taken, are deemed to have
17   been met.
18           (4)  Objections to questions and motions to strike
19   answers need not be made during the taking of this
20   deposition, but may be made for the first time during the
21   progress of the trial of this case, or at any pretrial
22   hearing held before any judge of competent jurisdiction for
23   the purpose of ruling thereon, or at any other hearing of
24   said case at which said deposition might be used, except
25   that an objection as to the form of a question must be made
0003
 1   Stipulations                                           -3- 
 2   at the time such question is asked, or objection is waived
 3   as to the form of the question.
 4           (5)  That the witness reserves the right to read
 5   and sign the deposition prior to filing.
 6           (6)  That the sealed original transcript of this
 7   deposition shall be mailed first-class postage or hand-
 8   delivered to the party taking the deposition for
 9   preservation and delivery to the Court, if and when
10   necessary.  
11                            * * * * *
12             (PLAINTIFF'S DEPOSITION EXHIBIT NOS. 1-4
13                   MARKED FOR IDENTIFICATION) 
14                     THE VIDEOGRAPHER:  This is the videotaped
15           deposition of Dr. Martin Poleski taken in the
16           matter of Thompson, et cetera, versus Melamud, et
17           al.  This deposition is being held on October 3rd,
18           2008, commencing at nine-oh-three A.M. at the
19           offices of the Division of Gastroenterology in
20           Durham, North Carolina. 
21                     Will the attorneys please introduce
22           themselves and the court reporter swear the
23           witness?
24                     MR. MISHKIND:  My name is Howard
25           Mishkind, and I represent the estate of Robert
0004
 1   Poleski                                                 -4-
 2   
 3           Thompson by and through his wife, Jean Thompson.
 4   
 5                     MR. POLITO:  My name is John Polito, and
 6   
 7           I represent the defendants in this lawsuit. 
 8   
 9   
10   
11   Whereupon,
12   
13                     MARTIN H. POLESKI, M.D.,
14   
15                     having been first duly sworn,
16   
17                     was examined and testified
18   
19                     as follows:
20   
21   
0005
 1   DIRECT EXAMINATION BY MR. MISHKIND:
 2   Q       Good morning, Dr. Poleski.
 3   A       Good morning, Mr. Mishkind.
 4   Q       How are you today?
 5   A       Great.
 6   Q       Great.  I'm glad to hear it.  
 7                     If you would, state your full name for
 8           the record just so that we have it down officially.
 9   A       Martin Poleski.  My middle name is Henry.  I don't
10           use it.
11   Q       Doctor, where exactly are you located for purposes
12           of today's deposition? 
13   A       We're in the clinic building of Duke University
14           Medical Center in Durham, North Carolina. 
15   Q       Doctor, because we're doing the deposition by
16           phone, hopefully there won't be anything cut out
17           with regard to my questions or your answers.  But
18           to the extent that my question does get cut off or
19           you're not able to hear it clearly, would you tell
20           me so? 
21   A       Yes.
22   Q       And obviously I will try not to interrupt you as
23           you're giving an answer, so that if for some reason
24           I do start a question and you're--you haven't
0006
 1           completed your answer, would you please tell me
 2           that you haven't finished?
 3   A       Yes.
 4   Q       Thank you.
 5                     You understand that this case is going to
 6           be proceeding to trial in a little bit less than
 7           two months up here in Cleveland?
 8   A       Yes.
 9   Q       And is it your intention to appear in person on
10           behalf of Dr. Melamud?
11   A       Yes.
12   Q       You understand that this is my opportunity and
13           hopefully my one and only opportunity to elicit
14           from you the opinions that you hold and the bases
15           for those opinions? 
16   A       Yes.
17   Q       And you understand that when this case goes to
18           trial, that I intend to rely upon those answers
19           that you give under oath today?
20   A       Yes.
21   Q       Great.  Doctor, I have an old CV that was provided. 
22           And I say old only in that it's dated July 5, 2005. 
23           I'm assuming that you have a more current CV.
24   A       Yeah, I do.  I can get it printed up at the end of
0007
 1           this deposition by my secretary.  I don't think
 2           there's huge changes.  There's probably a couple of
 3           added articles in there.  I don't think they relate
 4           to this case.  But I can provide it at the end of
 5           this. 
 6   Q       That would be great.  If you would just give a copy
 7           to John or if the court reporter is still there and
 8           you're able to--to print it off and give it to the
 9           court reporter, it could be attached to the
10           transcript as the next exhibit.  I had marked, I
11           believe, four items that we'll talk about, perhaps
12           more.  But we can then mark that.  If not, it's no
13           big deal if you just give John a copy.  I'm sure he
14           can fax it or mail it to me.
15   A       That's fine.
16   Q       Thank you, sir.
17                     Looking at the CV that I have, Dr.
18           Poleski, I see that there are a number of
19           publications, peer-reviewed articles that you have
20           published.  My copy, again, goes up to 2005.  Have
21           you written at all on the topic of either
22           diagnostic or therapeutic colonoscopies?
23   A       Not except what you have in the CV.  So I did some
24           work on screening for using hemoccult, and it
0008
 1           implies the use of colonoscopy.  But I haven't done
 2           anything subsequent to that on colonoscopy per se.
 3   Q       Now, you say it was screening.  What, for colon
 4           cancer? 
 5   A       Yeah.  Exactly. 
 6   Q       Did that article deal with any of the--either the
 7           algorithms that deal with the management of
 8           potential complications of colonoscopy?
 9   A       No. 
10   Q       Have you published anything that touches on the
11           risk factors for complications of colonoscopy?
12   A       No.
13   Q       Have you published on anything relating to
14           prevention of complications?
15   A       No.
16   Q       Have you published anything relative to colonos--
17           colonoscopic--excuse me--colonoscopic perforation?
18   A       No. 
19   Q       What about the--the topic of treatment of
20           complications following either a diagnostic or a
21           therapeutic com--therapeutic colonoscopy?  Have you
22           written on that topic? 
23   A       No. 
24   Q       Do any of the presentations that you've given that
0009
 1           would be reflected in the 2005 CV or your more
 2           current CV--do they--do they include any lectures
 3           or presentations that you've given relative to the
 4           management of complications, specifically
 5           management of--of perforations following a
 6           colonoscopy?
 7   A       I give a lecture for the last two years to our
 8           fellows in the summer on management of
 9           complications or issues of complications of all
10           endoscopic procedures.  I haven't written anything
11           on it.
12   Q       Did that--did the lecture touch on the
13           characteristics of early presentation versus late
14           presentation of colonoscopic perforations?
15   A       Not--not that I can re--I don't think I
16           differentiate in the presentation, no.
17   Q       But it does talk about the signs and symptoms of a
18           perforation?
19   A       Yes.
20   Q       How do you--how do you present that lecture? 
21   A       What do you mean how do I present it?
22   Q       How is it delivered?  Obviously you're--you're--
23   A       I speak in a--I--I use some PowerPoint slides, I
24           think, in that. 
0010
 1   Q       And I'm sorry.  Doctor, did you say this was to
 2           fellows or--or residents?
 3   A       It's to the fellows.  Some residents may come as
 4           well.  They're--so they're gastroenterology
 5           fellows.  And I can't tell you that some residents
 6           don't show up as well that are interested in
 7           gastroenterology.  But it's primarily geared to the
 8           fellows.
 9   Q       How long have you been giving that lecture?
10   A       I think the last two years. 
11   Q       What is it called if you recall? 
12   A       I think it's called "Complications of Endoscopy."
13   Q       Good title.
14                     Have you modified the--the PowerPoint or
15           the slides in any respect over the last couple
16           years? 
17   A       No, I think the lecture is more or less the same as
18           I first established it.
19   Q       Doctor, would you--is this something that you have
20           on your computer in your office?
21   A       Yeah.  I was afraid you were going to ask that.  So
22           I'll--I think I can find the--the PowerPoint. 
23           You've got to give me the weekend though to find
24           it.
0011
 1   Q       You can have at least to the early part of next
 2           week.  How's that? 
 3   A       Yeah, no problem. 
 4   Q       All right.  Thank you.  And then if you would be so
 5           kind as to provide it either to Mr. Hupp or Mr.
 6           Polito.
 7   A       Yeah.
 8                     MR. MISHKIND:  And then, John, I'll
 9           follow up with a letter to Steve--
10                     MR. POLITO:  Yeah.
11                     MR. MISHKIND:  --making a request to
12           provide me with that PowerPoint. 
13                     MR. POLITO:  Yeah.  Just make sure you
14           make all requests to him.
15                     MR. MISHKIND:  Absolutely. 
16                     MR. POLITO:  Okay.  
17                     MR. MISHKIND:  I will do so.  That's
18           assuming I can remember, although I'm--I'm making a
19           note.  I don't know whether I'll be able to read
20           it, but I'm making a note.
21                     MR. POLITO:  Okay.  
22   Q       Are there any other PowerPoints or electronic
23           teaching devices or documents that you have that
24           you use to teach residents or fellows on the
0012
 1           complications of endoscopy?
 2   A       No.  That's it.
 3   Q       Are you a member of the American Society for
 4           Gastrointestinal Endoscopy?
 5   A       Yes.
 6   Q       Are you also--I know there's another society for
 7           gastroenterology, and I'm blanking on that. 
 8   A       There's two others that I'm a member of, the
 9           American College of Gastroenterology and the
10           American Gastrointestinal Association.  Those are
11           the main ones for gastroenterology.
12   Q       And you receive the--the clinical--or the--the
13           standards of practice documents from the committee
14           of the American Society of Gastroin--intestinal
15           Endoscopy, do you not? 
16   A       They're usually published.  Yeah.  They're
17           published in their journals.  Yes.
18   Q       Okay.  And you--you've had your deposition taken
19           before, true? 
20   A       Yes.
21   Q       My recollection is that in reviewing at least one
22           of your depositions, that in terms of establishing
23           the standard of care, you acknowledge that the--the
24           statements of the American Society for
0013
 1           Gastrointestinal Endoscopy are factors that
 2           establish what the standard of care is for a
 3           gastroenterologist.
 4                     MR. POLITO:  Note--note my objection,
 5           Howard.
 6                     MR. MISHKIND:  Sure.
 7   A       No, I--I don't think--I--what I think I said is
 8           that those are guidelines.  In fact, when you
 9           access those guidelines online, it says
10           specifically that they are guidelines and are not
11           to be used without a medical degree and medical
12           knowledge.  And they're guidelines.  They're not
13           the standard of care.  The standard of care by
14           definition is what a reasonable physician would do
15           under similar circumstances. 
16   Q       And how long have you held that opinion as it
17           relates to what is or is not to be used to
18           establish the standard of care? 
19                     MR. POLITO:  Objection.  Go ahead,
20           Doctor. 
21   A       Well, you--you could use anything to establish the
22           standard of care.  So, you know, you read
23           literature; you read guidelines; you read
24           textbooks; you have your own clinical experience;
0014
 1           you see what physicians are doing in your
 2           community, and that's how you establish the
 3           standard of care.  It's what you believe a
 4           reasonably prudent physician would be doing.
 5                     You can certainly use those guidelines as
 6           part of your establishing those care, but I--I--the
 7           societies themselves do not consider them to be
 8           written in stone or something that you absolutely
 9           have to follow and actually warn physicians not to
10           do so. 
11   Q       Dr. Poleski, your practice though and what you
12           follow in terms of establishing the standard of
13           care--do you apply either the clinical practice
14           guidelines or the--the statements of the American
15           Society for Gastrointestinal Endoscopy as factors
16           that determine what a reasonably prudent
17           gastroenterologist should do under like or similar
18           circumstances? 
19                     MR. POLITO:  Howard, note my objection. 
20           I think there are, like, multiple questions in
21           there.  But go ahead, Doctor. 
22   A       I--I think they're--they--they function as
23           guidelines.  They're a body of knowledge, like--
24           like journal articles and like textbooks.  And so
0015
 1           they factor into that.  But I--you know, I don't
 2           agree with every word that's said.  And I think I
 3           have to interpret the guideline based on the
 4           clinical situation, my own knowledge base and what
 5           I see physicians are doing in the community.  So I
 6           think you're trying to establish them as the Ten
 7           Commandments, but they are not so.
 8   Q       And, Doctor, please understand I'm not trying to
 9           establish anything.  I'm just trying to determine
10           in terms of what you believe are factors that
11           establish the standard of care.  And the only
12           reason I'm asking this question is to determine
13           whether or not under oath you have previously
14           testified as to what--whether the society
15           guidelines or the society statements constitute the
16           standard of care.  
17                     And I think--correct me if I'm wrong.  I
18           think what you're telling me is that you have not
19           testified that the ASGE, the American Society for
20           Gastrointestinal Endoscopy, statements--it is not
21           your opinion that they establish what the standard
22           of care is?
23                     MR. POLITO:  Objection. 
24   Q       Is that true?
0016
 1   A       I--I can't remember ever sta--testifying under oath
 2           that one society's guidelines establish the
 3           standard of care.  I think I have been asked this
 4           question before, and I stated that they are taken
 5           into consideration.  But that is not my
 6           understanding of what the definition of standard of
 7           care is.  
 8                     They are part of a body of lan--of
 9           information, and physicians can follow them or not
10           follow them.  They may have reasons not to follow
11           them.  They may have other articles or they may
12           disagree with the conclusions.  
13                     The--these guidelines change, are--are
14           varied.  So they're a--you know what they say. 
15           They're--they're created by a committee.  And you
16           know a camel is just a horse that was created by a
17           committee. 
18   Q       I've never heard that one before. 
19   A       You didn't?  Well, just watch congress in action,
20           like the--while they try to fix the--the Ponzi
21           scheme they created for the last ten years.  
22   Q       All right.  I'll--I'll keep that in mind.
23                     So what I can take away from this
24           conversation so we can move on is that Dr.
0017
 1           Poleski's opinion is that the guidelines are a
 2           factor that is taken into account, but in and of
 3           themselves, these guidelines do not establish what
 4           the standard of care is in any particular case? 
 5                     MR. POLITO:  Well, I'm going to object,
 6           Howard.  He's--he's answered the question I think
 7           several times, and you keep trying to summarize. 
 8           His answer is what he answered.  But go ahead,
 9           Doctor. 
10   Q       Go ahead, Doctor. 
11   A       I'd agree that my answer is what my answer is.
12   Q       Well, and, Doctor, the fact that John has objected
13           and perhaps stated a speaking objection--please
14           answer my question.
15                     You take these guidelines into account in
16           determining what the standard of care is, but
17           they're not in your opinion the be all or the end
18           all in terms of what in any particular case a
19           reasonable gastroenterologist should do, is that
20           correct? 
21                     MR. POLITO:  Objection.  Asked and
22           answered.  Go ahead, Doctor.  
23   A       The guidelines are not the standard of care. 
24   Q       Okay.  
0018
 1   A       But--
 2   Q       And you--you--
 3   A       Can I finish, please?  Can I finish?
 4                     MR. POLITO:  Let him--
 5   Q       I'm--I'm sorry.  I'm sorry.  Go ahead, Doctor.  
 6   A       So--
 7   Q       I didn't mean to cut you off.
 8   A       Yeah.  So the guidelines are not the standard of
 9           care, but they are taken into consideration by
10           physicians in managing their patients.  And they
11           take into consideration as well their own
12           experience, what other physicians are doing in
13           their community as well as the larger body of
14           literature that is present.  So that's how the
15           guidelines are used.
16   Q       And is that how-- 
17   A       If--can I finish?  If they were--
18   Q       I'm sorry, Doctor.  If I cut you--
19   A       If they were the standard of care, they would be
20           called that, would they not? 
21   Q       Well--
22   A       They're called guidelines.  To me, the word "guide"
23           means something to give you a route.  It's like a
24           map.  But if you look at any map, there's several
0019
 1           routes you can take.  And you can decide for your
 2           own reasons based on circumstances which route you
 3           want to take.  So that's--a guideline is a guide. 
 4           It's--it's not the Ten Commandments.  It's not the
 5           standard of care.  
 6   Q       Okay.  I didn't want to cut you off.  Are you done
 7           now?
 8   A       Yeah.
 9   Q       Are you familiar with--by the same society that
10           we've been talking about--the standards of practice
11           committee?
12   A       I--I--I don't know the committee.  I'm sure they
13           have a practice committee, yes. 
14   Q       Standards of practice committee is what I'm
15           referring to--
16   A       Yes, I'm sure--I'm sure they do.
17   Q       --of the American Society for Gastrointestinal--
18   A       Yeah.
19   Q       --Endoscopy.
20   A       I'm sure they have one, yes.
21   Q       Are you familiar with that standards of practice
22           committee? 
23   A       I know they have a committee.  I--I don't know
24           every word that they have said.
0020
 1   Q       Do you receive the publications from the standards
 2           practice committee? 
 3   A       No, I don't.  I receive their journal.
 4   Q       And is that the ASGE journal?
 5   A       Yes.
 6   Q       And I think it's actually called Gastrointestinal
 7           Endoscopy--
 8   A       That's cor-- 
 9   Q       --published by the ASGE.
10   A       That's correct. 
11   Q       That's one of the journals that you as a
12           gastroenterologist receive on a regular basis?
13   A       Yes.
14   Q       And you review that in your practice? 
15   A       I don't review it every day, and I don't read it
16           cover to cover, no.
17   Q       Well, do you take it into account in terms of
18           keeping up to date on evidence-based medicine as it
19           relates to gastrointestinal issues? 
20   A       I don't read every article there.  So if you want
21           to refer me to an article that you want me to
22           review, then I'd be more than happy to discuss it.
23   Q       Let me ask you this, Doctor.  Have you reviewed in
24           preparing your--the original report that you
0021
 1           authored and sent to--let's see--actually, it just
 2           says "Case of Thompson versus South Pointe."  Had
 3           you reviewed any literature or standards or
 4           guidelines in preparing the opinion report that you
 5           wrote that is a full-page report? 
 6   A       No.
 7   Q       I received yesterday--and we'll talk about this--   
 8           a--a supplemental report.  Did you review any
 9           literature prior to preparing the addition to your
10           opinion that you sent by e-mail to Mr. Hupp's
11           office yesterday afternoon?
12   A       No.
13   Q       Are you relying on any literature to support any of
14           the opinions that you hold in this case?
15   A       No.  I should qualify that.  Any particular
16           literature.
17   Q       Well, what do you mean by that qualification, sir?
18   A       Well, I--I read articles.  I've been reading
19           articles on gastroenterology for the last thirty
20           years, and so I have a body of knowledge.  What
21           you're asking me I think is did I pick any specific
22           article, read it and based on that particular
23           article.  And my answer is no.  I base it on my
24           years of experience and my reading of the
0022
 1           literature over the last thirty years. 
 2   Q       And the reason I ask that, Doctor, is that in--and
 3           I'm sure that either Mr. Polito or Mr. Hupp
 4           provided you with the notice of deposition that
 5           requests that you bring any medi--medical
 6           literature that you've reviewed which supports your
 7           opinions or medical literature that you will
 8           comment on at trial.  It's No. 5 in the notice--
 9   A       Uh-huh (yes).  
10   Q       --to take deposition.  Do you have any literature
11           with you today that supports your opinions? 
12   A       No.
13   Q       Do you have any medical literature that you
14           anticipate relying upon to support in part any of
15           the opinions that you have in this case? 
16   A       No.
17   Q       Okay.  Just to complete the laundry list of
18           material that's on the notice, I assume you have
19           your entire file with you today, sir.
20   A       Yes.
21   Q       I know you use e-mail because you sent the addition
22           to your opinion to Christen Wilk from Mr. Hupp's
23           office yesterday stating an additional opinion that
24           was not contained in your original report.  Are
0023
 1           there any other e-mail communications that you had
 2           with Mr. Hupp or with anyone from the Bonezzi,
 3           Switzer, Murphy, Polito & Hupp law firm? 
 4   A       I had some e-mails, I think, about the trial date
 5           and dates that I would be available for a
 6           deposition.  That's about it.
 7   Q       Just scheduling issues then, true?
 8   A       That is correct. 
 9   Q       Nothing that had to do with any substance other
10           than this e-mail that you sent yesterday?
11   A       Other than the e-mail that I sent yesterday, that's
12           it.  There's no other sub--substance in the e-mails
13           except time factors.
14   Q       Thank you, Doctor.
15                     Tell me--you're at Duke.  And I know that
16           before Duke, you were out in California, true?
17   A       That's correct. 
18   Q       What is your--what's your position currently at
19           Duke? 
20   A       Clinical professor of medicine and department of
21           gastroenterology. 
22   Q       Do you have an area of subspecialty in
23           gastroenterology?
24   A       I've been interested in inflammatory bowel disease
0024
 1           and--but I do a lot of general gastroenterology as
 2           well.
 3   Q       It appeared that in looking at your CV, that IBD
 4           was an area of interest in terms of your research.
 5   A       That's correct.  That's inflammatory bowel disease.
 6   Q       Correct.  I'm trying to get fancy.
 7   A       That's okay. 
 8   Q       All right.  In terms of your clinical practice,
 9           could you tell me as a--you're a full professor,
10           sir?
11   A       Yes.
12   Q       How much time do you spend teaching versus actually
13           performing as the attending colonoscopies?
14                     MR. POLITO:  I'm sorry, Howard.  That--
15           that was a little unclear.  Teach--
16                     MR. MISHKIND:  Not a problem.  I'll--I'll
17           restate it, John.  You know, every once in a while
18           I do give you credit for an appropriate objection. 
19                     MR. POLITO:  Not often but--
20                     MR. MISHKIND:  Not often.  But, look,
21           you're entitled to be acknowledged when you're
22           correct. 
23                     MR. POLITO:  Right. 
24   Q       As a professor, do you do clinical teaching as well
0025
 1           as didactic?
 2   A       Most of what I do is clinical teaching, but I do
 3           some didactic teaching, as I've pointed out to you.
 4   Q       How would you break down your clinical teaching
 5           versus your didactic in terms of percentage?
 6   A       I'd say over ninety percent of it is clinical.
 7   Q       When you're doing the clinical teaching, I presume
 8           that's in either an endoscopy suite or in some
 9           clinical setting with a patient.
10   A       Yes.
11   Q       Okay.  And do you--do you actually perform
12           colonoscopies in your clinic--in your clinical
13           teaching, or do you supervise residents and fellows
14           or both?
15   A       Both.
16   Q       Tell me how often you are the one that's actually
17           doing the colonoscopy as opposed to supervising the
18           fellow or the resident.
19   A       So up until September 1st, I would say
20           approximately a third of the time I was doing the
21           colonoscopies myself, two-thirds of the time I was
22           supervising the fellows.  But--you may be surprised
23           to hear this, but fellows are not as good as I am,
24           so sometimes I have to take over the scope and
0026
 1           complete the procedure for them.
 2   Q       What happened as of September 1st that--that
 3           changed the--the percentages? 
 4   A       Right now, the majority of the time I'm doing the
 5           endoscopic procedures because Duke has asked me to
 6           manage the gastroenterology department at Durham
 7           Regional Hospital, which is one of the Duke
 8           hospitals that's about five minutes from here. 
 9           There's a teaching service there, but it's more of
10           a community hospital.  
11                     And for the moment, I'm the only
12           gastroenterologist doing in-patient care there. 
13           And I'm going to build up that practice by hiring a
14           couple of other gastroenterologists.  And hopefully
15           by next year we'll have a fellow rotating there. 
16           But right now, I do it all. 
17   Q       Dr. Poleski, do you have a private practice in the
18           area of gastroenterology? 
19   A       No.  I work entirely for Duke.
20   Q       It's my understanding that Dr. Melamud, the
21           defendant in this case, had a private practice.
22   A       Uh-huh (yes).  Yes.
23   Q       Is--is that your understanding as well? 
24   A       Yes.
0027
 1   Q       Have you ever--when was the last time you practiced
 2           outside of a university setting in the capacity of
 3           a--of a private practice where you had an office
 4           and would--provided general gastroenterology
 5           services to patients outside of--of a university
 6           setting?
 7                     MR. POLITO:  Well, I'm going to object. 
 8           You're making it sound like he doesn't have an
 9           office now.  But--but go ahead.
10   A       Well, right now, I'm working actually as a private
11           gastroenterologist in all but name, because I'm
12           still employed by Duke, but I'm basically out there
13           on my own.  So your question is a little difficult
14           to answer.
15                     In June 2003, I worked for Scripps--
16           Scripps Clinic Medical Group, which is not a
17           university but a private multi-specialty group
18           similar to the Lahey Clinic, Cleveland Clinic,
19           Kaiser Foundation, et cetera, et cetera.  
20                     And in that position, I would say that
21           although we had some fellows, we had much fewer
22           than here.  So most of the time I was working on my
23           own I would say seventy-five percent of the time
24           and only interacted with the fellows when I was on
0028
 1           consult service or occasionally one of them would
 2           spend a month for--with me.
 3                     But of course it's not the same
 4           situation, I don't think, as Doc--Mr.--Dr. Melamud,
 5           who is working as a private physician, not working
 6           for Kaiser or not working for a large organization. 
 7           So does that answer your question? 
 8   Q       It--it does, sir.  Thank you. 
 9   A       I--I think my current situation is a lot closer to
10           Dr. Melamud's, and my situation at Scripps Clinic
11           was much closer to Dr. Melamud's.  But I--you know,
12           I didn't have to do my own billing and issues like
13           that.  But in the clinical realm, I think it--it
14           much closer to Dr. Melamud's situation. 
15                     And of course in Canada, I was also
16           closer to Dr. Melamud's situation, although I was
17           still working for a large organization, was part of
18           McGill University.  But in that setting, we had to
19           do our own billing and things like that.  So it's--
20           it's all very complicated.
21   Q       Thank you.
22                     Are you an American citizen?
23   A       Yes.
24   Q       When did you become an American citizen?
0029
 1   A       I think it was April or May 2000.
 2   Q       How many colonoscopies would you say you do as the
 3           actual operator, if you will, of the colonoscope or
 4           the endoscope on a yearly basis?
 5   A       Well, where I'm actually the physician handling the
 6           scope, I would say, depending on the year, it'd be
 7           four or five hundred.
 8   Q       And has that been pretty much the average?
 9   A       That's an average, because I just explained to you
10           that my practice has constantly changed.
11   Q       Sure.  And I--I understand that.  
12   A       So--
13   Q       That's why I used the term "average."
14   A       Yeah.  So let's--let's take it over a ten-year
15           period of time, because it--it varies.  Even here
16           at Duke, there are times when I don't have a fellow
17           and I do my own procedures, and other times I do
18           have a fellow.  So it's--you know, I--I--I--I'm
19           sorry, but I'm not obsessive enough to track this
20           information. 
21                     But I certainly do a significant number
22           of procedures by myself and have been doing
23           colonoscopies since 1976.
24   Q       How many times have you had the complication of a
0030
 1           perforation of a bowel during a colonoscopy? 
 2   A       Colonoscopic perforation I believe I've had twice.
 3   Q       And if I use--again, not holding you to this but--
 4           four hundred to five hundred a year, sometimes
 5           more, sometimes less, and multiply it by--you said
 6           since--since 1976, sir? 
 7   A       Yeah.  I was a fellow from '76 to '78, so I         
 8           contin--I--I include that time.
 9   Q       And during that time, if we do the math, you've had
10           two perforations?
11   A       Yeah.  And I blame them both on my fellows--
12   Q       Okay.  
13   A       --'cause they were both helping me with those
14           procedures. 
15   Q       And I've seen in the literature that the--the
16           incidence--and we'll talk about that in a moment--
17           in terms of certain complications--at least a
18           factor that's taken into account is the--the
19           experience of the--the operator.  Is that a fair
20           statement? 
21   A       It's an unfair statement, but that's what the
22           literature says.  It--it has--it has more to do
23           with--it--it has certainly a--a degree to the
24           experience of the operator, but it also depends on
0031
 1           the nature of their practice.  So if they're doing
 2           more difference procedures, if they're being
 3           referred the most difficult cases, they may--you
 4           know, an individual may have a higher perforation
 5           rate.  I think it just depends on the nature of
 6           their practice. 
 7   Q       What was the outcome with the two perforations that
 8           you had parenthetically that you blame on your
 9           fellows?
10                     MR. POLITO:  Objection.  Go ahead,
11           Doctor. 
12   Q       And--and that was meant somewhat in levity,         
13           Doctor--
14   A       Yeah.  Well, it was meant in--
15   Q       --as I think was your statement previously.
16   A       Right.  Well, that's why I take responsibility for
17           everything my fellow--so that's why I said they
18           were my complications originally.
19   Q       Sure. 
20   A       They--they both survived.
21   Q       Were the complications--were the perforations--were
22           they recognized at the time of the colonoscopy, or
23           were they recognized hours later? 
24   A       One was recognized immediately after the
0032
 1           colonoscopy.  The other one was--or actually was
 2           suspected during the colonoscopy.  The other one
 3           was--I'm trying to estimate time.  It was
 4           recognized less than a day but more than a half a
 5           day after the procedure. 
 6   Q       Was the patient in the hospital, or had the patient
 7           been discharged?
 8   A       The patient was in the hospital.  It was a
 9           hospitalized patient. 
10   Q       What was the treatment--what--what were the signs
11           or symptoms that indicated a potential perforation?
12                     MR. POLITO:  Hey, Howard, so I don't have
13           to--I'm just going to object to all questions
14           concerning these two perfs if I--so I don't have to
15           keep interrupting you.  If I could just have a
16           continuing line of objections. 
17                     MR. MISHKIND:  That's fine.
18                     MR. POLITO:  Okay.  Go ahead, Doctor. 
19   A       Both patients had abdominal pain.  The patient that
20           was in hospital developed pain and--abdominal pain
21           and I believe nausea and vomiting in the middle of
22           the night.
23   Q       What was the treatment--strike that. 
24                     The patient that developed nausea and
0033
 1           vomiting during the night, did that patient require
 2           surgery, or was he medically managed?
 3   A       Required surgery.  Also had abdominal pain.
 4   Q       Right.  Oh, I'm sorry.  I--I didn't mean to exclude
 5           that.  I--
 6   A       Okay.  
 7   Q       Whatever the symptoms were that you had described.
 8   A       Right. 
 9   Q       That was the patient I was referring to. 
10   A       Right. 
11   Q       Was he managed initially medically, or was it a--an
12           emergency surgery? 
13   A       Surgery.  Initially managed medically, and then the
14           surgery was done in the morning.
15   Q       Have you ever experienced a situation in the same
16           setting that Dr. Melamud did where a patient had a
17           colonoscopic polypectomy on an outpatient basis at
18           a hospital, was discharged nine, ten o'clock A.M.
19           and then experienced a perforation at some time
20           after being discharged and then had to be
21           readmitted to the hospital? 
22   A       Not one of my patients. 
23   Q       Have you managed such a patient? 
24   A       Yes. 
0034
 1   Q       How many in that clinical setting have you managed
 2           where there was a colonoscopic polypectomy; patient
 3           was discharged and then came back to be admitted
 4           because of a suspicion of a perforation?
 5   A       If you don't include my two cases, it'd probably be
 6           around ten, I would imagine.  I was going to say
 7           about a dozen, but that includes my two.  So I'd
 8           guesstimate around ten.
 9   Q       And of those ten, can you tell me how many, once
10           admitted to the hospital, were able to be managed
11           medically versus surgically?
12   A       I've had none of them med--managed medically,
13           although one or two there was an attempt to manage
14           them medically, and they subsequently were managed
15           surgically.
16   Q       When a patient is managed medically for a suspected
17           perforation, there are--are there certain tests
18           that are performed to rule in or rule out the
19           perforation? 
20   A       Well, if you have signs and symptoms of a
21           perforation, then, yeah, you usually will confirm
22           it with either a abdominal series or a CAT scan
23           depending on the circumstance.
24   Q       And I guess what I'm trying to get at in terms of--
0035
 1           is a abdominal CT considered the gold standard if
 2           you have a high suspicion of a perforation?
 3                     MR. POLITO:  Objection.  Go ahead,
 4           Doctor. 
 5   A       If you have a high suspicion of a perforation, what
 6           I do is an abdominal series.  If the abdominal
 7           series does not suggest perforation but you still
 8           have a high suspicion, then you'll go ahead and do
 9           a CT scan, which is I guess you would call the gold
10           standard.
11   Q       Where those--the patients have come back in--you
12           told me the ten or so--they've all required
13           surgery? 
14   A       Eventually, yes.
15   Q       Now, as a gastroenterologist, do you do the
16           surgery, or is that outside your area? 
17   A       No.  I refer to a surgeon.
18   Q       Fair enough.
19                     Do you know what the outcome was with
20           those ten patients? 
21   A       They all survived except one.  The one that died
22           was when I was actually a resident taking care of a
23           perforation that a colorectal surgeon had done. 
24           And this was in, oh, I'd say '74, '75.  And the
0036
 1           patient had surgery, was in the intensive care unit
 2           where I was taking care of him.  And after several
 3           days, he went into sort of just failure.  He
 4           developed ARDS.  And his lungs shut down; his
 5           kidneys shut down, and eventually he passed away.
 6                     But that was the only case that I was
 7           involved with as a managing physician.  The rest of
 8           them in more recent years have all survived.
 9   Q       In addition to colonoscopies that you do either as
10           the operator or in your teaching capacity, sir--
11   A       Yes.
12   Q       --do you do general gastrointestinal procedures,
13           ERCPs, sigmoidoscopies and--and other similar--
14   A       Yeah.  I used to do ERCPs up until 2003, but when I
15           came here, 'cause they have a large group, they
16           didn't need me to do them, so I gave those up.  So
17           I did ERCPs for approximately twenty-five years. 
18                     So--but I still do colonoscopies, upper
19           endoscopies, dilations, flexible sigmoidoscopies,
20           put in feeding tubes, PEGs, as they're called,
21           gastrostomy tubes, et cetera, et cetera-- 
22   Q       I'm--I'm sorry.
23   A       --dilations, et cetera, et cetera. 
24   Q       Great.  It's--I--I just want to check in and make
0037
 1           sure that--there have been a couple times where
 2           I've started my question while you were still
 3           answering, but we--have I been fair to you in terms
 4           of letting you finish your-- 
 5   A       Yeah.  I think I described the procedures I
 6           continue to do.
 7   Q       Great.  I just--because of the overlap, I just want
 8           to make sure that I'm not cutting you off and
 9           preventing you from finishing a sentence.
10   A       That's fine.
11   Q       Thank you, sir.
12                     What hospitals do you perform procedures
13           at currently?
14   A       Currently I perform them at Duke and Durham
15           Regional Hospital.  I do have staff privileges at
16           the VA here--the Durham VA.  And I have performed
17           colonoscopies without the help of fellows.  Usually
18           we--we do these occasionally on Saturday mornings. 
19           They get backlogged.  They have so many patients. 
20           They don't have enough people to do the
21           colonoscopies.  
22                     So for about a year to year and a half I
23           was helping them out.  But they seem to have enough
24           of a compliment of people now, so I don't do them
0038
 1           anymore there.  But I do have privileges there to
 2           do them.  
 3                     So right now mainly at Duke and Durham
 4           Regional Hospital, which is the community hospital
 5           that is owned and managed by Duke University as a
 6           teaching service there, et cetera. 
 7   Q       Thank you.
 8                     Doctor, what I want to do now is to ask
 9           you some questions about your medical-legal
10           experience and then hopefully segue into talking
11           about the specific opinions that you hold in this
12           case and the bases for those, okay?
13   A       Okay.  
14   Q       I know you've had your deposition taken before.
15   A       Yes.
16   Q       And if you could, if you could give me an idea--if
17           it's an estimate, fine--if you know precisely--how
18           many times you have given depositions where you
19           were serving as an expert witness.
20   A       I--I think it's about thirty times now.  I don't--I
21           don't keep track.  I just keep a rough idea.  So I
22           think this is the second deposition I'm doing this
23           year.  So it's about thirty since 1994.  It varies. 
24           Some years are--are--are more; some years are less. 
0039
 1           I've had years where I didn't do any depositions. 
 2           But, for example, for this year, I think this is
 3           the second one.
 4   Q       You said thirty.  And I thought you said 1994.  Did
 5           I mis--
 6   A       Nine--since 1994, I've been doing medical-legal
 7           work.  That's correct.  And so--
 8   Q       Okay.  Great.
 9   A       Right. 
10   Q       And in terms of the percentage of times where
11           you've testified under oath in a deposition or at
12           trial, how many cases have you--of those thirty or
13           so, how many have been on behalf of a patient
14           bringing a claim?
15   A       So you're mixing apple and oranges.  You--you
16           mentioned trial and you mentioned depositions.  So
17           then--
18   Q       Okay.  I'll--let me--let me go back and start over
19           to be fair to you.  I--I didn't mean to mix apples
20           and oranges. 
21   A       Okay.  
22   Q       Let's talk about where you've testified under oath
23           in a deposition.  Tell me how many times you
24           remember doing that on behalf of a plaintiff or a
0040
 1           patient bringing a claim against a doctor. 
 2   A       It's--it's probably currently about fifty/fifty,
 3           although it--it may be--looking at depositions, it
 4           may be slightly more for the plaintiff.  But I'd
 5           say in the last few years, it's probably running
 6           fifty/fifty.  So either a little more for the
 7           plaintiff or about fifty/fifty.
 8   Q       Now, when you were out in California--California, I
 9           believe you did some work for the Schochor,
10           Federico and Staton firm in Baltimore, Maryland.
11   A       Yes.
12   Q       Do you still do work for those guys?
13   A       Yes.
14   Q       If we put that firm aside, are there any other
15           plaintiffs' firms that you currently have testified
16           under oath in a deposition on behalf of a patient? 
17   A       No, but I--I--I still deal with other plaintiff
18           firms.
19   Q       Right.  But my--my specific question is--just so
20           that we don't mix apples and oranges--
21   A       Sure.
22   Q       --is testified under oath in a deposition.  And
23           what I asked was if you could provide me with the
24           names of any plaintiffs' firms other than Schochor,
0041
 1           Federico and Staton where you've testified under
 2           oath in a deposition on behalf of a patient. 
 3   A       No.
 4   Q       Can you give me the name of any firms other than
 5           Schochor, Federico and Staton in Baltimore,
 6           Maryland where you've testified at trial on behalf
 7           of a patient? 
 8   A       Besides Schochor, Federico, right?  You're
 9           excluding them?
10   Q       Yes, sir.  
11   A       No.
12   Q       Have you ever testified at trial on behalf of a
13           physician, defending a physician?
14   A       Yes.
15   Q       How many occasions? 
16   A       I think it's--I think it's three times.  And then
17           there was an arbitration in California which was
18           for a physician.  So it's--I could call it four
19           times, I guess, that it's gone to court that I can
20           remember. 
21   Q       And in deposition, again putting aside the
22           Baltimore firm for a moment--how many times have
23           you given deposition testimony on behalf of a
24           physician, defending a physician? 
0042
 1                     MR. POLITO:  Wait a minute.  So how--I
 2           don't know why the Baltimore came in there, Howard.
 3   A       Because it's a plaintiff firm.
 4                     MR. POLITO:  Yeah, it's a plaintiffs'
 5           firm.
 6                     MR. MISHKIND:  Right.  
 7                     MR. POLITO:  Okay.  
 8   Q       In other words, we've established that other than
 9           this one plaintiff firm, you've not testified under
10           oath for any other plaintiffs' firms since you've
11           been doing this work, is that correct? 
12   A       That's correct, as far as I can remember. 
13   Q       And so what I was asking next is of the thirty or
14           so times you've given deposition testimony, how
15           many times--under oath in deposition--how many
16           times have you testified on behalf of a defendant
17           physician defending the doctor on standard of care?
18                     MR. POLITO:  I thought he already
19           answered that, Howard.  But go ahead.
20   A       Well, it's hard for me to remember, but I'd say
21           maybe about ten times under deposition.  I--I can't
22           remember.  
23   Q       Is it--are you saying that the other twenty times
24           has been for this plaintiffs' firm?
0043
 1   A       Yeah, most of my work has been for that plaintiffs'
 2           firm.  It's only in the last few years that I've
 3           been doing any--I--I only did a very little bit of
 4           defendant work in California.  There was--there was
 5           a lawyer--I think his last name is Belsky--I'm
 6           trying to remember his first name--that worked for
 7           Kaiser that I did some work for him, for both for
 8           Kaiser and I think he also had a private practice. 
 9           And I remember doing at least one or two cases for
10           him for defendants that was not Kaiser-related.
11                     But when I was in California, the
12           majority of my work was for Schochor, Federico,
13           with a little bit of work for Kaiser.  And I think
14           I did one case, but it wasn't deposed--never was
15           deposed for it, where I acted as a expert reviewer
16           for SCPIE, which is the--
17   Q       Southern California Insurance--
18   A       Right. 
19   Q       --Physicians Exchange [sic]?
20   A       Yeah.  So I did a little bit of work for them but
21           not very much.  They would call me occasionally and
22           ask me about a case.  So that's--that's it.  So the
23           vast majority of stuff--and then when I came here,
24           I had a backlog of a bunch of cases for Schochor,
0044
 1           which--which I did, and then began to do more
 2           defendant work here when I was at Duke.  So most of
 3           my defendant work began to pick up the last three,
 4           four years. 
 5   Q       When you mentioned Mr. Belsky, that was the case
 6           that you testified on behalf of Dr. Berlin,
 7           correct? 
 8   A       That is correct. 
 9   Q       The cases that you have been involved in for the
10           Baltimore firm, those cases were failure to
11           diagnose colorectal cancer, were they not?
12   A       You--I got to--I got to tell you I think you know
13           my CV--medical-legal CV better than I do.  I--I
14           haven't reviewed it recently.  I--I could not off
15           the top of my head tell you what they involved. 
16           There were certainly cases of colorectal cancer. 
17           There were cases of--I think I remember missed
18           leaks.  There were cases of misdiagnosis of ulcer
19           disease.  There were cases of misdiagnosis of
20           cancer.
21                     So I think most of them were a whole
22           hodgepodge of, you know, issues related to general
23           gastroenterology.  They weren't just related to
24           colon.  I don't think any of them related to liver
0045
 1           disease, so I would exclude that.  They included
 2           pancreas.  I think there was a gallbladder case. 
 3           There were colon cases.  
 4                     So they were all gastroenterology.  But
 5           you reviewed it.  Why don't you list them for me
 6           and I'll tell you whether you're correct or not.
 7   Q       Doctor, with all due respect, I'm taking your
 8           deposition, so--and obviously I'll--I'll ask you.
 9   A       Right.  Well, I--I don't think it's fair to expect
10           me to remember every case I've done for the last
11           fifteen years.  If you had wanted that              
12           information--I don't think even if you had told me
13           before I would have been able to get it.  I--I
14           shred the cases once they're done.
15   Q       When you mentioned medical-legal CV, is there such
16           a document that you have--
17   A       I just-- 
18   Q       --or have ever prepared?
19   A       No.  I told you I never have. 
20   Q       Okay.  So you were referring that sort of in a--
21   A       I--I suggested you had prepared one, but I never
22           have. 
23   Q       Fair enough.  You've never prepared what's known as
24           a disclosure statement for federal court?
0046
 1   A       No.
 2   Q       Have you ever testified in federal court?
 3   A       No.
 4   Q       Other than the Mercer case back in San Diego, have
 5           you ever been named in a medical negligence case? 
 6                     MR. POLITO:  Objection.  Go ahead,
 7           Doctor. 
 8   A       No.
 9   Q       Mercer was the only time that you were--were--had a
10           claim brought against you for medical negligence?
11                     MR. POLITO:  Objection. 
12   A       That cor--sorry.
13   Q       Okay.  
14   A       Yes, that's correct. 
15   Q       Of the expert work that you've done, plaintiff,
16           defendant, have any of the cases involved
17           perforations following either a diagnostic or a
18           therapeutic colonoscopy? 
19   A       I can't remember any of the depositions or court
20           cases that I have been involved with to date that
21           involve perforation of the colon in relationship to
22           a diagnostic or therapeutic colonoscopy. 
23   Q       Now, let me ask you before we move from this topic
24           onto the next one in terms of reviews--'cause I
0047
 1           think we've--we've talked about your testifying in
 2           court; we've talked about your depositions, but we
 3           haven't talked about reviews that you do on an
 4           annual basis, at least I don't believe we have. 
 5           Could you tell me on average how many cases you
 6           review either at the request of plaintiffs'
 7           attorney or an attorney defending a doctor on an
 8           annual basis? 
 9   A       Probably less than ten.  Probably averages over the
10           last ten years maybe five, six, maybe a little
11           more.  With that--six--ten years would be sixty. 
12           Yeah, probably around that number.  Yeah.
13   Q       And, Doctor, of those cases, how many of them
14           percentage-wise are presented to you by a
15           plaintiffs' attorney as opposed to a defendant
16           attorney? 
17   A       Well, over the last ten years, it's been more
18           plaintiff 'cause I've done more depositions for
19           plaintiffs, as you know.  So it's more for the
20           plaintiffs. 
21   Q       Now, when you get a case from a plaintiffs'
22           attorney, do you always agree to serve as the
23           expert? 
24   A       No.  I reject some cases if I don't have time or I
0048
 1           don't think I'm the right person to do it.
 2   Q       And also if you don't feel that there was a
 3           standard-of-care violation?
 4   A       Well, yeah.  But I just--there--there are some
 5           cases that I just don't even review.  So I guess
 6           I'm getting confused by review versus--you--you
 7           sort of--I--I think I understood you say I get a
 8           case and it looks like liver disease or it looks
 9           like something that I--I don't think I have the
10           expertise in, then I don't sit down and waste my
11           time or anybody's money and review it.  I just send
12           it back or I'll suggest somebody else.  
13                     And there are some cases I--I get--you
14           know, I--I--that I just don't have the time to do. 
15           I mean, I--I do have another job.  
16   Q       And there are--are there--did I cut you off,
17           Doctor?  I'm sorry.
18   A       No.  I'd just point out to you that I--I don't look
19           at every case if I don't have time or I don't think
20           the issue is one that I can give the best opinion
21           on.
22   Q       And certainly you would agree that in the cases
23           that you are presented that are in your topic, your
24           area of expertise and you do have time, not all of
0049
 1           those cases are you able to tell the attorney that
 2           you can help him?  In other words, not all cases
 3           that are presented to you that you review do you
 4           find standard-of-care violations?
 5   A       That's correct. 
 6   Q       And flipping it over on the defense side, you've--I
 7           take it you've had cases presented to you that you
 8           reviewed and you've told the defense attorney that
 9           you felt that there was a standard-of-care
10           violation and that you couldn't serve as an expert
11           defending the doctor. 
12   A       That's correct. 
13   Q       And you would certainly agree that if a physician--
14           a gastroenterologist fails to meet the standard of
15           care as we defined what a reasonably prudent
16           gastroenterologist would do under like or similar
17           circumstances, that physician should be held
18           accountable for his negligence or his failure to
19           meet the standard of care? 
20                     MR. POLITO:  Well, I--objection.  But go
21           ahead.
22   A       Well, you know, you're asking me basically a legal
23           opinion, because there's, you know, always two
24           aspects to a case.  Somebody can make an error in
0050
 1           good faith, and it doesn't necessarily--something
 2           that's below the standard of care.  As well,
 3           somebody may make an error in the standard of care,
 4           and it may not change the outcome.  
 5                     So I--I--I don't know.  You know, you're
 6           asking me sort of almost a legal opinion.  I mean,
 7           if I--if I don't think I can defend the standard of
 8           care of a physician, I won't do it.
 9   Q       Let me ask it to you in a different way, Doctor. 
10           Do you have any basic disagreement with the concept
11           that if the standard of care by a
12           gastroenterologist has been violated; the
13           gastroenterologist did not meet the standard of
14           care and that that standard of care was a cause of
15           injury--do you have any disagreement with the
16           concept that the gastroenterologist should be held
17           accountable for his or her errors that were
18           preventable and avoidable? 
19                     MR. POLITO:  Objection.  Asked and
20           answered.  Go ahead, Doctor. 
21   A       Well, you--you've gone through my legal CV.  And
22           obviously the answer is yes since I've testified
23           against gastroenterologists who have violated the
24           standard of care to the detriment of their patient. 
0051
 1           So obviously the answer is yes.
 2   Q       Okay.  Have you reviewed any cases for this law
 3           firm before being presented the case of Thompson
 4           versus Melamud? 
 5   A       I think I did review one other case as far as I
 6           know, but I--I can't remember that.  It may have
 7           been more than one, but it certainly wouldn't be--I
 8           think it's just one.  Maybe--
 9   Q       Which attorney from that firm--from this particular
10           firm--Bonezzi firm? 
11   A       I--I can't remember. 
12   Q       How long ago was that? 
13   A       It was probably some time in the last five years. 
14           Probably three to five years ago. 
15   Q       I take it, Doctor, it was before the Thompson case
16           was presented to you.
17   A       Yes.
18   Q       And were--to your recollection, were you deposed in
19           that case? 
20   A       I don't think I was deposed in that case.
21   Q       Was it defending a physician up here in Cleveland?
22   A       It was defending a physician.  Where it was, I
23           don't remember. 
24   Q       Do you remember the name of the physician offhand?
0052
 1   A       No.
 2   Q       So I take it then when you were contacted about
 3           this case, you were at least familiar with this law
 4           firm.
 5   A       Yes.
 6   Q       And is that basically--you know, the--the typical
 7           question is how were you contacted.  I'm going to
 8           sort of answer this for you.  Because you had
 9           reviewed a case for them previously?
10   A       Yeah, I guess so.  I mean, law firms, you know,
11           will either contact me if I've--I've worked with
12           them before or, you know, obviously they contact me
13           out of the blue.  And so I don't know how they get
14           my name.  I don't know if they look around, if
15           somebody refers them, somebody else they've worked
16           with.  I have no idea.  I never ask.
17   Q       Do you have any other cases that are open that
18           you're serving as an expert for the Bonezzi,
19           Switzer firm other than the Thompson case?
20   A       Not that I--no, I don't think so.  No.
21   Q       Doctor, I presume that you do not provide your name
22           as a medical consultant or a medical expert to any
23           expert witness companies.
24   A       That is correct.  There was a firm in Miami that
0053
 1           approached me years ago when I was in California,
 2           and they put me on their roster of physicians that
 3           are interested in medical-legal cases.  But I never
 4           got a case from them and haven't heard from them in
 5           years.  
 6                     I think for a couple of years they sent
 7           me a Christmas card, but that was about the only
 8           thing I got from them.  But I didn't ask to be
 9           listed.  And I think it was run by an RN that--out
10           of somewhere in Florida, maybe Miami.  But I've
11           never listed myself.  I don't advertise my
12           services. 
13   Q       Do you know whether you're still listed by that
14           company down in Miami?
15   A       Well, I haven't gotten a Christmas card in about
16           four or five years, so I don't think I'm listed
17           anymore.  I don't know if the company exists.  I
18           don't--I don't know the name of the company.  I
19           can't remember.  It was sort of, you know, somebody
20           says "Well, we'll list your name.  Is that okay?" 
21           I said "Fine."
22   Q       How much do you charge, Doctor, to review a case?
23   A       I charge four twenty-five to review.  I charge six
24           hundred dollars for everything else:  conferences,
0054
 1           depositions and legal testimony in court.  However,
 2           usually court time, there's a--there's a minimum
 3           charge depending on how much time's involved. 
 4   Q       My recollection is that you either charge for a
 5           half a day or a full day.
 6   A       Yeah, depending on how--you know, if--if there's a
 7           case done, let's say, around here, it--it'll be a
 8           half a day, but if I were to have to go to
 9           Cleveland, the--the minimum charge would be one
10           day.  And that assumes I can get there and back.
11   Q       And has your minimum char--what--have you adjusted
12           your minimum charge in the last two or three years?
13   A       Yeah.  Duke sent out a thing that we were
14           undercharging, so we raised our rates I think two,
15           three years ago.
16   Q       What do you charge for a day away from the
17           practice? 
18   A       I forget what that thing says.  I think it says
19           thirty-five hundred dollars for half a day.  So a
20           whole day would be about seven thousand dollars.
21   Q       Plus travel and--and lodging and--and meals,
22           correct? 
23   A       Yeah.  Right.  Travel, lodging, meals, et cetera. 
24   Q       In terms of the payment for the services, where
0055
 1           does that money go to? 
 2   A       Sometimes it goes directly to me.  Sometimes I have
 3           Duke bill it.  And then they--
 4   Q       Eventually, whether it goes directly to you or
 5           whether it gets billed, you ultimately benefit from
 6           that payment?  In other words, it--it doesn't
 7           bypass you in terms of being part of your income,
 8           correct? 
 9   A       It becomes part of my income, but Duke takes ten
10           percent.
11   Q       Fair enough.
12                     Doctor, the report that I have, the
13           initial report, which is a full page--my report
14           does not have a date on it.  Does yours?
15   A       (Examines paperwritings.)  No.  
16   Q       Do you have correspondence with you from the
17           Bonezzi firm?
18   A       Not really, no.  Let me just see here.  I have some
19           correspondence here, yeah.
20   Q       Are you able to tell by looking at the
21           correspondence when you were first sent the
22           material that's referenced in the first
23           paragraph of your report? 
24   A       Well, actually, I--I remember it was sent to me
0056
 1           around 2006.  I guess I didn't bring that because
 2           at that time the--the--the case was dropped.  So I
 3           reviewed the material, then the case was dropped. 
 4           So I didn't think of bringing those letters.  So--
 5           but it was some time in 2006.
 6                     MR. MISHKIND:  The--and let me just for
 7           the record--even though it's not necessary, I'm
 8           going to move to strike the--the comment about the
 9           case being dropped.  
10   Q       But in any event, the--you believe that you were
11           first contacted some time back in 2006?
12   A       Yeah.  I have a letter here that suggests that I'm
13           roughly correct from when the case was reactiva--
14           reactivated.  I--I can't--you know, whatever you
15           like to hear me say.
16   Q       Well--
17   A       When I was--
18   Q       --all I want to know is when you were first
19           contacted, not--
20   A       Well, I was first contacted in 2006, and then I was
21           recontacted in January of 2008.
22   Q       And did you then write this report some time
23           shortly after January of 2008?
24   A       I think I was asked to write this report some time
0057
 1           a few months afterwards.  It certainly wasn't in
 2           January, February, March.  I think--seem to
 3           remember like April, May, something like that.  I--
 4           I can't remember exactly.  I don't know.  Some time
 5           two, three months later, I was asked to write this
 6           report. 
 7   Q       Doctor, do you know why the report is not dated?
 8   A       I don't know. 
 9   Q       Do you normally date your reports? 
10   A       Not always.  Sometimes I forget. 
11   Q       Did you type this yourself? 
12   A       Yes, I did.
13   Q       Have you written--other than what I just received
14           yesterday as the addendum or additional opinion,
15           have you written any other reports expressing any
16           opinions in this case?
17   A       No.
18   Q       So, for example, when you were first contacted back
19           in 2006, did you prepare a report at that time? 
20   A       No.
21   Q       Do you have any drafts of the report that--the
22           undated report that you prepared some time in the
23           early to middle part of 2008?
24   A       No.
0058
 1   Q       The correspondence that you have, does it set forth
 2           just "Enclosed please find," or are there any
 3           statements as--in terms of a summary of either the
 4           issues that they wanted you to address or a
 5           statement of any facts about the records?
 6   A       No.  I--I--I was asked to--no.  I was just asked to
 7           write a report.  I wasn't told what to write in it. 
 8           I was asked to give my opinion on actually the
 9           standard of care, which is what that report is
10           about. 
11   Q       How many letters, Doctor, do you have with you from
12           the Bonezzi firm?
13   A       I have three letters here.  Oh, sorry, another one
14           here.  Four.
15   Q       And to your knowledge, does that constitute all of
16           the correspondence that you've received from them?
17   A       Well, I--I did tell you that there was some e-mail
18           regarding times as well.  So I think I mentioned
19           that early on.  And those e-mails regarded not my--
20           actually I got five now.
21                     MR. POLITO:  Howard, I'm just looking
22           through his file to see if there are--
23                     THE WITNESS:  Yeah.
24                     MR. POLITO:  --any others.
0059
 1                     MR. MISHKIND:  Thank you. 
 2   A       There's a couple of letters that I do not have that
 3           came with the depositions.  I have one here that
 4           came online, so I've got it.  You know, they're all
 5           the same, you know, "Here's the deposition of" so-
 6           and-so.  "Please read it and let us know what you
 7           think.  Give us a call."
 8                     And then there were the e-mails that--
 9           about, you know, things like "When are we going to
10           meet?  When are we going to talk," that kind of
11           stuff, "When--when can you do a deposition?"
12                     There were no--aside from this written
13           report, there were no written opinions--and the e-
14           mail that you received--there are no other written
15           reports that I made on this case.
16   Q       Doctor, only because I'm not there and I don't have
17           an opportunity to see the correspondence, what I'd
18           like to do is take a brief break, go off the record
19           and then mark the correspondence consecutively as
20           the next exhibits and then have copies of the
21           correspondence attached to the--the transcript that
22           will be provided.  
23                     MR. MISHKIND:  And this is probably as
24           good a time as any to just take a few-minute break
0060
 1           if that's okay with everyone there.
 2                     MR. POLITO:  That's fine.
 3                     THE WITNESS:  That's fine.
 4                     MR. MISHKIND:  Okay.  Why don't we just
 5           take a break for a couple minutes, give the court
 6           reporter an opportunity to mark it.  I'm going to
 7           get, in all honesty, a refill on my coffee.
 8                     THE VIDEOGRAPHER:  We're off the record
 9           at ten-fifteen A.M.
10                  ______________________________
11                       (TEN-MINUTE RECESS)
12                  ______________________________
13            (PLAINTIFF'S DEPOSITION EXHIBIT NOS. 6-10
14                   MARKED FOR IDENTIFICATION) 
15                     THE VIDEOGRAPHER:  We're back on the
16           record at ten-twenty-five A.M.
17   Q       Doctor, when we were off the record, the court
18           reporter marked as Exhibit 6 through 10
19           correspondence from Steve Hupp's office with the
20           last, Exhibit 10, being dated October 1, 2008.  If
21           you could just take a look at those exhibits and
22           confirm that Exhibits 6 through 10 constitute the
23           correspondence that you've received--the written
24           correspondence that you've received from the Hupp--
0061
 1           from Steve Hupp's office in connection with this
 2           case.
 3   A       That's correct, although as I stated, there may be
 4           a couple of letters missing that came with some of
 5           the depositions that I received.  Oh, I'm sorry. 
 6           Oh, I don't--sorry.  I didn't have my--my
 7           microphone on.
 8                     So there may be a couple missing--if I
 9           find them, I'll get them for you--where they came
10           with the depositions, you know, saying "This is a
11           deposition of" so-and-so.  "Could you read it and
12           call us with your opinion?"  That's what they
13           usually always say.
14   Q       Exhibit 10 dated October 1, can you read into the
15           record what that letter says?
16   A       Yeah.  "Enclosed please find a copy of the
17           deposition transcript of Dr. Anthony Senagore for
18           your review before your deposition on Friday,
19           October 3rd, 2008 in the above-re--referenced
20           matter.  If you should have any questions
21           concerning this matter, please do not hesitate to
22           contact me." 
23                     So those are the things that I get.  The
24           only reason I have this one is it came on e-mail,
0062
 1           so I printed it out.  So maybe everything should be
 2           sent by e-mail so that it's--it's easily found.
 3   Q       Exhibit 9, what's the date of that letter, please?
 4   A       Nine is dated August 1, 2008.
 5   Q       And is that a brief letter also?
 6   A       Yeah.  That talks about when this deposition is
 7           going to be.
 8   Q       Okay.  Doctor, did you prepare any notes either on
 9           the computer or on paper as you reviewed this case?
10   A       I have a few notes that--
11                     MR. POLITO:  Yeah.
12   A       Yeah.  I have a few notes here just when I looked
13           through some of the depositions.  They--they don't
14           hold my opinions.  They hold the opinions of the
15           people who--depositions I read.  
16   Q       Were those--when were those notes made?
17   A       I didn't date them.  They're when I reviewed the
18           depositions of David Eisner and Grant Vincent
19           Bochicchio.  Now, let me see.  Do I have any
20           others?  I don't think so.
21                     MR. POLITO:  Howard, just so you know,
22           when we--we met--when I met with the doctor today,
23           he had one short note concerning my meeting with
24           him that would--that of course my position is--is
0063
 1           that you're not entitled to it.
 2   A       And then--
 3                     MR. MISHKIND:  A short note?
 4                     MR. POLITO:  Yeah.  He--while we were
 5           talking, he--he wrote something down of what we
 6           discussed.  I'm--I'm trying to be honest with you,
 7           Howard.  
 8   Q       Okay.  And the other note?
 9   A       The one note on--
10   Q       How many pages, Doctor, are the notes?  What I'd
11           like to do is just identify it, mark it as an
12           exhibit and--
13                     MR. POLITO:  Just so you know, Howard,
14           he's--he's tearing it out of a--out of a three-ring
15           binder so, I mean--so you know he's doing that      
16           now--the notes that he prepared in--in his review. 
17                     MR. MISHKIND:  Okay.  
18                     MR. POLITO:  And then there was one page
19           that was not in the three-ring binder that he was
20           just about to describe to you.  So--
21   A       Yeah.  That was I think a--a--a note on the--Dr.
22           Melamud's deposition.  
23                     MR. POLITO:  So, Howard, just so you
24           know, there--and he's making sure if there's
0064
 1           anything else there.  There's one other--is that
 2           it?  
 3                     THE WITNESS:  No.  No.  That's not
 4           related.
 5                     MR. POLITO:  Okay.  There's one, two,
 6           three--four pages of notes, Howard.
 7                     MR. MISHKIND:  Okay.  And then there's
 8           another sheet that was prepared when you were
 9           meeting with him?
10                     MR. POLITO:  Yeah.  It's--it's one line,
11           Howard, literally.
12                     MR. MISHKIND:  Okay.  
13                     MR. POLITO:  Okay.  
14                     MR. MISHKIND:  And you're indicating that
15           that one line you're not willing to share with me?
16                     MR. POLITO:  No.  I--it has to do--and
17           you're aware that--you know, of the case that says
18           you're not entitled to it, but, I mean, whatever. 
19           So--
20                     MR. MISHKIND:  I just want to find out--
21           and I'm not familiar with what that case is, but--
22                     MR. POLITO:  Okay. 
23                     MR. MISHKIND:  --you're just saying on
24           the record that this one page--or the one line on
0065
 1           this one page is in the file, but it's not
 2           something that if I were there you would allow me
 3           to see and certainly not something that you're
 4           allowing to be marked as an exhibit.
 5                     MR. POLITO:  Correct. 
 6                     MR. MISHKIND:  Is that--is that a fair
 7           statement?  
 8                     MR. POLITO:  Correct.  It's not in his
 9           file here.
10                     MR. MISHKIND:  Okay.  It's somewhere in
11           existence but not within eyesight, and it's not
12           something that you are willing to provide to me?
13                     MR. POLITO:  Doctor, let's save some
14           time.  What did you write down on--on the thing so
15           there's no--
16   A       In discussion with Mr. Polito, I wrote down "True,
17           true and unrelated."
18                     MR. POLITO:  Okay.  That's what was
19           written on it, Howard.  So I'll--I'll--
20   Q       "True, true and unrelated"?
21   A       Yeah.  That's my opinion of the case. 
22   Q       Okay.  
23   A       So we can save a lot of time.
24                     MR. POLITO:  Yeah.
0066
 1   Q       All right.  Well--
 2   A       And you can save a lot of money.
 3   Q       Let's go ahead and mark as Exhibit 11 the
 4           collective notes that you have, and then we can
 5           move on.
 6                     MR. POLITO:  Okay.  And just so you know,
 7           Howard, we'll do the same thing.  The originals
 8           will stay with the doctor, and--and we'll have a--
 9           we'll have the originals marked, but the originals
10           will stay with the doctor and we'll have copies
11           attached.
12                     MR. MISHKIND:  Very good.  
13              (PLAINTIFF'S DEPOSITION EXHIBIT NO. 11
14                    MARKED FOR IDENTIFICATION)
15                     MR. MISHKIND:  If the court reporter
16           would just let me--I'm probably talking when the
17           court reporter has her hands off the machine.
18                     MR. POLITO:  No.  She's doing it the--
19           the--the way where she actually does it into the
20           machine herself.
21                     MR. MISHKIND:  Okay.  
22                     MR. POLITO:  So--did we give those to 
23           you, Madame Court Reporter?
24                     THE WITNESS:  You've got them marked.  So
0067
 1           I'll--
 2                     MR. POLITO:  Okay.  So--
 3                     THE WITNESS:  Yeah.  I'll--
 4                     MR. POLITO:  Okay.  
 5                     THE WITNESS:  I can photocopy them at the
 6           end.
 7                     MR. POLITO:  They've been marked, Howard.
 8                     MR. MISHKIND:  Excellent.  So Exhibit 11
 9           are the doctor's notes with the exception of that
10           one true, true and not related?
11                     MR. POLITO:  Right. 
12                     MR. MISHKIND:  Okay.  Thank you. 
13   Q       (By Mr. Mishkind)  Doctor, looking at your undated
14           report that you wrote some time earlier in 2008--
15   A       Yeah.
16   Q       --in the first paragraph, it indicates items that
17           you had reviewed.  And rather than you repeating
18           what is said there, was that the material that you
19           had and considered in writing your report back in
20           the early part of 2008?
21   A       That's correct. 
22   Q       So at the time that you wrote the report, you had
23           the death certificate and the autopsy?
24   A       That's correct. 
0068
 1   Q       I take it since this report, you have received some
 2           additional information.
 3   A       That's correct. 
 4   Q       Would that include plaintiff's expert reports and
 5           the depositions of plaintiff's experts? 
 6   A       That's correct. 
 7   Q       Have you been provided with the depo--the report of
 8           Dr. Wetley, one of the defense experts in this
 9           case? 
10   A       No.
11   Q       Are you familiar with Dr. Wetley?
12   A       No.
13   Q       You mentioned--I think you mentioned Dr. Senagore.
14   A       That's correct. 
15   Q       You were provided with his transcript from just
16           earlier this week?
17   A       Yes.
18   Q       Do you know Dr. Senagore?
19   A       No.
20   Q       Have you seen Dr. Senagore's report? 
21   A       No.
22   Q       Have we now described all of the data by way of
23           reports--and when I say "plaintiff's experts,"
24           we're talking about Dr. Bochicchio and Dr. Eisner,
0069
 1           their depositions and their reports, Dr. Senagore's
 2           deposition.  If we added that on, would that be the
 3           totality of all the information that you've been
 4           provided in this case?
 5   A       Yeah.  I--I received the report of Bocacchio and--
 6           Bochicchio--I'm sorry--and a report of--was it
 7           Eisner--David Eisner.  So I got those reports.  I
 8           just can't find them right now.  But I did get
 9           copies of their reports.  I just don't know where I
10           put them.
11   Q       Okay.  Any other material that you've reviewed in
12           arriving at your--your original report or the one-
13           sentence addendum that I received yesterday?
14   A       No.
15   Q       When you reviewed the case, you had sufficient
16           information from the records, the death certificate
17           and the autopsy to be able to formulate opinions
18           relative to standard of care.  Is that a fair
19           statement? 
20   A       That's correct.  I'm just looking through this one
21           other report here.  I--I just can't tell if this is
22           a doctor's office notes that's not Dr. Melamud's
23           or--or what.  So there's a report here.  I don't
24           know what this is.  I don't know.  The--the doctor
0070
 1           sort of writes on--
 2                     MR. POLITO:  Yeah.
 3   A       --sort of blank pieces of paper, and it doesn't--
 4                     MR. POLITO:  Yeah.  Howard, I--again,
 5           because this is not mine, I don't know--is Dr.
 6           Gliner--would he be--would they have-- 
 7                     MR. MISHKIND:  Yeah, Dr. Gliner--Boris
 8           Gliner.  Do you know--do you have records from Dr.
 9           Gliner? 
10                     MR. POLITO:  Yeah.  Do they start,
11           Howard, like on 3-6-03 or 4-1-03?  Would that be--
12                     MR. MISHKIND:  I don't have the records
13           in front of me, so I can't confirm that. 
14                     MR. POLITO:  Yeah.  It looks like it's an
15           office chart of--of a doctor.  Concluded within
16           there is from--it looks like--is he a--is he--oh,
17           no.  It looks like it's Gliner because there's a
18           letter in here from, like, Mars to Gliner, Howard.
19                     MR. MISHKIND:  Okay.  
20   A       Yeah.  He doesn't sign his reports, so I can't tell
21           who they're from. 
22   Q       Fair enough.  So it looks like the material that
23           you have perhaps has some office records or some
24           note--notes from a Dr. Gliner, G-l-i-n-e-r--
0071
 1   A       Right. 
 2   Q       --and perhaps some notes or records from a Dr.
 3           Mars, M-a-r-s?
 4                     MR. POLITO:  No.  
 5   A       No.
 6                     MR. POLITO:  Howard, in--in Gliner's
 7           records, there was a letter from Gliner.  That's
 8           why I was trying to tell you I thought it was--was
 9           Gliner's records. 
10                     MR. MISHKIND:  Fair enough.  So is it
11           fair to say that at least looking at what you have
12           there, Dr.--Dr. Poleski does not have Dr. Mars'
13           office records? 
14   A       You know, whose office records I have--
15                     MR. POLITO:  Wait a minute.  There-- 
16                     THE WITNESS:  Whose--this is Melamud's
17           records. 
18                     MR. POLITO:  Yeah, Melamud's.
19   A       Unfortunately that record is--is not signed by any
20           human being so--
21                     MR. POLITO:  Howard, I don't see it here. 
22           Whether or not it was sent to him or not or he
23           reviewed it, again, I can't speak to it.
24   Q       Other than some correspondence that you may not
0072
 1           have with you, is it my understanding that you have
 2           with you the totality of the information other than
 3           perhaps some e-mail transmittals--
 4   A       Yeah.
 5   Q       --with you today?
 6   A       I--oh, here it is.  Yeah, I have it all.  Yeah.
 7   Q       Okay.  
 8   A       Yeah.
 9   Q       Doctor, do you know how many hours you've put in on
10           this case? 
11   A       About four to six hours.
12   Q       And have you billed for those four to six hours? 
13   A       No. 
14   Q       I'm sorry? 
15   A       I may have billed for my initial review but not the
16           four to six hours that I reviewed the case for this
17           deposition. 
18   Q       How many hours had you re--had you billed for prior
19           to preparing for the deposition? 
20   A       I think it was two hours.
21   Q       That you billed for and you're just not--you
22           haven't billed for the additional four to six
23           hours?
24   A       No, because, you know, those are--I sort of tend to
0073
 1           do it in the last couple of months prior to the
 2           deposition when I have time.  If I--if I do it too
 3           far away, I won't remember a thing.
 4   Q       Doctor, again, only because I'm not there, as you
 5           look through the records and the depositions, have
 6           you tabbed or marked anything in the records that
 7           is germane to any of the opinions that you have in
 8           this case as opposed to just bringing something to
 9           your attention? 
10   A       They're just things to bring me to attention, you
11           know, so that I can try to keep--if--if you ask me
12           to look at something or I need to look at
13           something.  So they--the only thing that's written
14           on these is what the note is about or what's
15           written in this particular thing to remind me what
16           it's about.  
17   Q       Doctor, going back to your original report, as I'm
18           looking at the report, you provided an opinion in
19           that original report, that one sentence, that Dr.
20           Melamud acted within the standard of care.  Is it
21           fair to say in that report from early part of 2008
22           that you did not provide any causation opinions? 
23   A       That is correct. 
24   Q       Even though you had the death certificate and the
0074
 1           autopsy, you limited your opinion to standard of
 2           care, is that correct? 
 3   A       I was asked to do that, and that's what I did.
 4   Q       And when were you asked to provide--strike that. 
 5                     Had you been asked to provide causation
 6           opinions, you would have had sufficient information
 7           at that time to opine or to comment on causation,
 8           correct? 
 9   A       I had indicated from the date I received the case
10           the--my opinions on causation.  So that goes back
11           to 2006.
12   Q       Well, I don't see anything in writing that you had
13           indicated a causation opinion prior to receiving
14           this e-mail yesterday afternoon.  Is there
15           something that you're referring to?
16   A       I'm referring to my conversation with the--Mr.
17           Hupp.
18   Q       Okay.  But is it fair to say that whatever that--
19           that causation opinion was, prior to yesterday, you
20           had not written any supplemental reports or
21           expressed anything in the original report on
22           causation?
23   A       That's correct.  In writing.
24   Q       I'm sorry, sir? 
0075
 1   A       I had expressed nothing in writing.
 2   Q       Got it.
 3                     Certainly you had sufficient information
 4           from the autopsy and the medical records to have
 5           provided causation opinions if requested?
 6   A       If requested, I would have done it, yes.
 7   Q       Okay.  And I guess what I'm--what I want to
 8           appreciate is whether there was anything that was
 9           new that was provided to you that facilitated your
10           addendum or addition to your opinion as expressed
11           in this e-mail of October 2nd, 2008 that you didn't
12           have back in the early part of 2008 or back in 2006
13           when you first were presented with this case.
14                     MR. POLITO:  Howard, you keep referring
15           to an e-mail.  Just so you know, it's our position
16           what you received was a supplemental report within
17           more than thirty days as--as contemplated by the
18           rules.  But go ahead, Doctor. 
19   A       I didn't receive an e-mail request.  I was told
20           that the issue was that I could not testify about
21           causation unless I had written it into the report. 
22           So I'm not familiar with Ohio law.  So I've
23           testified in other jurisdictions where, you know, I
24           haven't been asked to either write a report or it
0076
 1           hasn't been an issue.  So I was informed of that,
 2           and I was asked would I add my causation opinion,
 3           and I said sure.
 4   Q       And you were asked, I presume, to do that--well,
 5           tell me when were you asked to provide your opinion
 6           as to causation?
 7   A       This week.
 8                     MR. POLITO:  And, Howard, just so you
 9           don't feel like you're in any way prejudiced--
10   A       Written.  Can we say written, please?
11                     MR. POLITO:  Yeah, written.
12   Q       I'm sorry, sir?
13   A       Please add written to that.  Say--
14   Q       I'm sorry, Doctor.  I didn't hear you.
15   A       Well, I'm just clarifying it.  I was asked for my
16           written opinion about causation this week.  I have
17           discussed it since 2006 with the attorneys. 
18   Q       Fair enough.
19   A       I've had an opinion since then, but I was asked
20           this week that I have to write it down or I will
21           not be able to testify in court about causation.
22                     MR. POLITO:  Okay.  And, Howard, I--the
23           only thing I was going to add for--for the record,
24           that if in fact you feel in any way prejudiced by
0077
 1           asking him questions regarding his causation
 2           opinion, we will make Dr. Poleski available for an
 3           additional deposition. 
 4   Q       Doctor, I had a couple items marked as exhibits
 5           before the deposition started.  I think they're
 6           Exhibits 1 through 4.  If the court reporter could
 7           kindly hand those to you.
 8                     MR. POLITO:  He has them.
 9   Q       Okay.  Exhibit 1, can you identify that for the
10           record? 
11   A       One is my written--I don't know what you call it--
12           my written statement about the standard of care of
13           Dr. Melamud in this case which you've been
14           referring to. 
15   Q       Okay.  
16   A       Second is dated October 2nd.  "Enclosed please find
17           a supplemental report of Dr. Martin Poleski in the
18           above-referenced matter.  If you should have any
19           questions concerning this matter, please do not
20           hesitate to contact me.  Steven J. Hupp."
21                     This is October 2nd.  "Please be advised
22           that Dr. Poleski intends to testify at trial on the
23           issue of proximate causation.  I have requested a
24           supplemental report from Dr. Poleski; however, I
0078
 1           suspect that this report will not be prepared in
 2           time for your discovery deposition.  Specifically,
 3           Dr. Poleski will testify that Mr. Thompson's death
 4           was not related to his colon perforation."  And--
 5   Q       So that would be Exhibit 3?
 6   A       That's three.  And four is my e-mail addition to my
 7           opinion on this case.  "It is my opinion to a
 8           reasonable degree of medical probability that Mr.
 9           Thompson did not die as a result of his colonoscopy
10           and subsequent perforation."
11   Q       And that is Exhibit 4, sir? 
12   A       Yeah.
13   Q       Thank you.
14                     And so Exhibit 4, just so we're clear, is
15           your--your supplemental report that was referenced
16           by Mr. Hupp in his letter which I think was dated
17           October 2nd and references Exhibit 3?
18   A       That's correct. 
19   Q       Now, in that report that you sent by e-mail--I've
20           got it dated October 2nd at twelve-fifty P.M.  At
21           least that's when it shows it was sent to Christen
22           Wilk, who is Mr. Hupp's assistant.
23   A       That's correct. 
24   Q       Now, you indicate that in your opinion, Mr.
0079
 1           Thompson did not die as a result of the colonoscopy
 2           and subsequent perforation.  And you hold that
 3           opinion obviously to a reasonable degree of medical
 4           probability?
 5   A       That's correct. 
 6   Q       And what I'm understanding is that you had that
 7           opinion even back when you wrote the original
 8           report but weren't asked to comment on causation up
 9           until just these past couple days.  Comment
10           officially I should say.
11   A       Yeah, I wasn't asked to comment officially.  That's
12           correct. 
13   Q       Now, in this report, can we agree that you don't
14           state an opinion to a reasonable degree of medical
15           probability as to what the cause of death was?
16   A       That's correct. 
17   Q       Okay.  And I take it, Doctor, that while you don't
18           believe that the perforation caused his death, that
19           you don't hold an opinion to a reasonable de--
20           degree of medical probability as to what the cause
21           of death was in this case.
22   A       Well, I have an opinion of what the cause of death
23           was, but I'm not certain of what it was.
24   Q       Well, you didn't express to a reasonable degree of
0080
 1           medical probability what the cause was; you just
 2           indicated it wasn't the perforation?
 3   A       Uh-huh (yes).  
 4   Q       And by that--and being this an additional or
 5           addendum report--I'm looking--I'm--I'm concluding
 6           that if you had an opinion to a probability more
 7           likely than not what the cause was, that that would
 8           have been stated in this addition to your opinion.
 9                     MR. POLITO:  Objection.  Go ahead.
10   A       I wasn't asked to give my opinion on what I thought
11           the cause of death was, so I didn't state it.
12   Q       Okay.  So you've not been asked to provide an
13           opinion other than to say it wasn't the colonoscopy
14           and the subsequent perforation?
15   A       I haven't been asked to give a written opinion. 
16           I've discussed, you know, with the lawyers what I
17           think some of the possible causes are.
18   Q       Now, again, possible--you recognize having done
19           this long enough that--
20   A       Uh-huh (yes).  
21   Q       --possible doesn't meet the requisite degree of
22           proof in a court of law? 
23                     MR. POLITO:  Well, I--I would beg to
24           differ in that regard.  But go ahead, Doctor. 
0081
 1   A       Well, the--the--the causes of death that I theorize
 2           I am not an expert on, and so, you know, you would
 3           have to get testi--testimony from specialists in
 4           that area.  And so that's why I'm--haven't written
 5           them down or maybe that's why I haven't been asked. 
 6           I don't know. 
 7                     I have opinions on what he died of or
 8           what was the cause of death, but I would assume in
 9           a court of law that the experts in those fields
10           would have to testify if that was correct or not.
11   Q       All right.  Again, Doctor, I just want to find out
12           what doors I need to open at this particular point. 
13           And if you have not been asked to provide an
14           opinion to a probability as to what the cause of
15           death was, I--I conclude because I don't see it in
16           this report that you've just been asked to say he
17           didn't die of a subsequent--of a--of a colonoscopic
18           perforation but have not been asked to provide
19           opinions as to what you believe to a reasonable
20           degree of medical probability he did die of.  Is
21           that a fair statement? 
22   A       I--I don't understand your statement.  Can I--can
23           I--
24   Q       Then I'll re--I'll rephrase it.
0082
 1   A       Yeah.
 2   Q       I don't see anything indicating your opinion as to
 3           what the cause of death was other than to refute it
 4           being related to the perforation.  And you said a
 5           moment ago that you have opinions as to
 6           possibilities.  But do you have an opinion to a
 7           reasonable degree of probability more likely than
 8           not what the cause of death was? 
 9   A       Well, I--I--I do have opinions, but there's not one
10           cause.  I have several opinions, but I--I guess,
11           you know, I--this is an unfamiliar territory for
12           me, as I have testified many times in depositions,
13           and I've not had to write down what my opinions
14           are.  So if you don't ask me my opinion of what the
15           causes of death are and if they don't--and I'm not
16           allowed to testify because I haven't written about
17           them, I will not bring them up.
18                     MR. POLITO:  Howard, why don't we go off
19           the record for one second.
20                     MR. MISHKIND:  Sure.  Okay.
21                     THE VIDEOGRAPHER:  We're off the record
22           at ten-fifty-one A.M. 
0083
 1                  ______________________________
 2                      (THREE-MINUTE RECESS)
 3                  ______________________________
 4                     THE VIDEOGRAPHER:  We're back on the
 5           record at ten-fifty-four A.M.
 6   Q       Okay.  Doctor, while we were off the record, there
 7           was a point of clarification made, and I just want
 8           to be clear on this.  It's your intent to provide
 9           an opinion at trial that Mr. Thompson did not die
10           of complications from the subsequent perforation
11           that occurred as a result of the colono--you intend
12           to--to--to testify that he did not die as a result
13           of the subsequent perfor--perforation of the colon
14           but that you do not intend to provide any opinions
15           to a probability more likely than not as to what
16           the cause of his death was.  Is that your
17           understanding as well? 
18   A       That's correct.  
19   Q       Is it your opinion, Doctor, that the perfora--first 
20           of all, he did suffer a perforation, correct? 
21   A       That's correct. 
22   Q       And as a result of the perforation, he did develop
23           acute peritonitis, correct? 
24   A       That's correct. 
0084
 1   Q       And is it your opinion that the perforation had
 2           absolutely no relationship to the events that
 3           subsequently led to his death?
 4                     MR. POLITO:  Objection as to form.  Go
 5           ahead, Doctor. 
 6   A       I'll list--I was looking for my statement there. 
 7           Where is that? 
 8                     MR. POLITO:  Oh, you mean the
 9           supplemental?
10   Q       Exhibit 4?
11   A       Yeah.
12                     MR. POLITO:  Wait a minute.  Hold on for
13           a second.
14                     MR. MISHKIND:  Sure. 
15                     THE WITNESS:  What happened to the
16           supplemental?
17                     MR. POLITO:  It was in together with      
18           the--
19                     THE WITNESS:  Which number was that? 
20                     MR. POLITO:  It was No. 4.
21                     THE WITNESS:  Oh, here it is somewhere.
22                     MR. POLITO:  Got it.  Okay. 
23   A       Okay.  So I have a written opinion here.  "It is my
24           opinion to a reasonable degree of medical
0085
 1           probability that Mr. Thompson did not die as a
 2           result of his colonoscopy and subsequent
 3           perforation."
 4   Q       And my question to you was is it your opinion       
 5           that--let me make it perhaps easier to--to respond
 6           to.  Is it your opinion that Mr. Thompson would
 7           have died anyway even if he had not suffered a
 8           perforation and acute peritonitis as a result of
 9           the colonoscopy?
10   A       Yes.
11   Q       So the perforation was just totally and completely
12           noncausative of any factors that contributed to his
13           death?
14   A       That's correct.  True, true and unrelated.          
15           That's--
16   Q       Okay.  
17   A       --that was just my statement before.  It was--
18   Q       That was what the true, true and unrelated was,
19           huh?
20   A       That's right. 
21   Q       Okay.  Doctor, do you in--in your teaching, do you
22           still refer your residents to Yamadas and I think
23           it was Bockus, B-o-c-k-u-s, as reasonably reliable
24           treatises in the--in the area of gastrointestinal
0086
 1           diseases? 
 2   A       I--I refer--I don't refer them to Bockus anymore. 
 3           I don't think it's been updated for several years
 4           now.  I--I refer them to several texts and
 5           journals, Bockus, Sleisenger and Fordtran.  I refer
 6           them to journals, variety of publications.  I tell
 7           them that there is no one source of all power and
 8           that the--they have to read several texts to come
 9           up with an opinion as to what should be done in a
10           particular case.
11   Q       And the ones that you just referenced, even though
12           you don't tell them to look to any one text, can we
13           agree that the texts that you just referenced are
14           reasonably reliable in terms of getting information
15           on gastrointestinal diseases? 
16   A       These and several others, yes.
17   Q       Which journal do you consider to be reasonably
18           reliable as it relates to evidence-based medicine
19           in the area of gastrointestinal diseases? 
20   A       There's Gastroenterology.  There's The American
21           Journal of Gastroenterology.  A--the AGA has a
22           clinical journal of gastroenterology and
23           hepatology.  I don't think I'm calling it right,
24           but it's a sister publication to Gastroenterology. 
0087
 1           There's the Gastrointestinal Endoscopy.  There's
 2           the journal Gut.
 3                     There's The New England Journal of
 4           Medicine and the Annals of Internal Medicine.  And
 5           then there are other journals that are widely read,
 6           such as JAMA and the Archives of Internal Medicine,
 7           that have occasional articles in regards to
 8           gastroenterology.  There are several clinics that
 9           are published and different topics of
10           gastroenterology.  
11                     So all of this--this body of knowledge
12           plus the texts we've mentioned plus several other
13           specialized texts either on endoscopy or hepatology
14           or different aspects of gastroenterology--these all
15           sort of constitute the body of knowledge of
16           gastroenterology. 
17   Q       The experts that we referred to before, Eisner,
18           Bochicchio, I think you told me that you don't know
19           either of them.
20   A       I don't think I've ever met them.  I wouldn't be
21           able to recognize them if they were here.
22   Q       Have you looked at any of the writings by Dr.
23           Bochicchio?
24   A       No.  No.  I think he just presented a CV.  He
0088
 1           didn't present any articles.  If he had--had, I
 2           would have read them.
 3   Q       You didn't do any online research to look at any of
 4           the--the literature that he's written?
 5   A       He obviously didn't think that any of the
 6           literature that he wrote was important enough to
 7           give me a copy of, so I--why would I go look it up?
 8   Q       Well, it isn't a question of whether or not he felt
 9           it was important enough to give to you.  I'm asking
10           you whether or not you chose to look online at any
11           of the literature that he's written.
12   A       No. 
13   Q       Thank you.  
14   A       I didn't look online.  I didn't look at his CV.  I
15           didn't look at anything. 
16   Q       The--when do you believe, Doctor, the perforation
17           to the colon occurred? 
18   A       It was some time in late afternoon, early evening. 
19           So it could have been anywhere from four to six I
20           would guesstimate.
21   Q       And on what do you base that? 
22   A       I base it on Ms. Thompson's testimony that the
23           patient slept through most of the afternoon, and I
24           think she said he got up somewhere around four-
0089
 1           thirty, five and started feeling uncomfortable at
 2           that point.  And so I would imagine that maybe at
 3           that point he either had a perforation or at that
 4           point the--the--the problem was beginning.
 5   Q       Now, you reviewed Ms. Thompson's deposition,
 6           correct? 
 7   A       Yes.  Yes.
 8   Q       When, based upon your review of her deposition, did
 9           Mr. Thompson begin complaining of sharp pain and
10           bloating?
11   A       She--she stated that he started complaining in the
12           late afternoon.
13   Q       Of sharp pain and bloating?
14                     MR. POLITO:  Well, let's go to her depo
15           so--
16   A       Well, let's go to her depo.
17                     MR. POLITO:  If you have a page, Howard,
18           we can save some time.  If not, he'll look through
19           it.
20                     MR. MISHKIND:  Page 28.
21                     THE WITNESS:  Yeah.
22                     MR. POLITO:  Okay.  
23   A       (Examines paperwritings.)  That's correct.  That's
24           what she said, late afternoon, early evening.  Do
0090
 1           you agree with her statement that I'm reading?
 2   Q       Well, that's--that's what--I asked you what her--
 3           what her testimony was.
 4   A       That was her testimony. 
 5   Q       I'm sorry?
 6   A       I'll read her testimony. 
 7   Q       No.  No.  It's okay.  I--
 8                     MR. POLITO:  He--
 9   Q       Mr. Polito asked me to tell him the page.
10                     MR. POLITO:  No, he said that was her
11           testimony. 
12                     MR. MISHKIND:  Oh, okay.  I'm sorry,
13           John.
14   A       Well, because you were questioning my time and I--
15           she stated late afternoon and early evening.
16   Q       Okay.  And--but she mentioned that Mr. Thompson
17           complained of sharp pain and was feeling bloated,
18           correct? 
19   A       Yeah.
20   Q       Okay.  Now, when Mr. Thompson spoke to Dr. Melamud,
21           can we agree that there are no contemporaneous
22           notes that Dr. Melamud either wrote or dictated as
23           it relates to the conversation that he had with Mr.
24           Thompson?
0091
 1   A       On that day?  No, he did not.
 2   Q       And the only--the only note that he has relative to
 3           the telephone call is the following day after Mr.
 4           Thompson was already in the hospital having
 5           arrested, correct? 
 6   A       That's correct. 
 7   Q       So the only people that would have heard Mr.
 8           Thompson in terms of what his symptoms were would
 9           be Ms. Thompson and Dr. Melamud, correct? 
10   A       That's correct.  
11   Q       And if the patient complained of sharp pain, that
12           is--that's a symptom that is of some clinical
13           significance, is it not?
14   A       If he complained of that, that's correct. 
15   Q       Okay.  And certainly if he complained of sharp
16           pain, can we agree that the standard of care
17           required Dr. Melamud to direct the patient to the
18           emergency room for immediate evaluation? 
19                     MR. POLITO:  Howard, just a point of
20           clarification because I think your question--if he
21           complained of--if he complained of it to Dr.
22           Melamud? 
23                     MR. MISHKIND:  Correct. 
24                     MR. POLITO:  Okay.  I'm sorry.  I just
0092
 1           wanted to make sure that was--
 2   A       Yeah, if he complained of it to Dr. Melamud, he
 3           should have been referred to the emergency room. 
 4   Q       And if in fact that is what he complained of to Dr.
 5           Melamud during that conversation and Dr. Melamud
 6           opted to suggest an enema and if that didn't work
 7           to either call back or go to the emergency room
 8           thereafter, can we agree that that would be a
 9           standard-of-care violation? 
10   A       If he complained to Dr. Melamud of the sharp pain
11           and the rest of what you said, that would be a
12           standard-of-care violation.
13   Q       Why is that, Doctor?  What--what significance--if
14           sharp pain was part of the described symptom
15           complex, of what significance should that have been
16           to Dr. Melamud? 
17   A       Well, the sharp is not important to me.  It's only
18           the pain.  So if somebody has severe pain--people
19           call pain different things.  You want to call it
20           sharp, fine.  So if he had spoken to Dr. Melamud
21           and said he had sharp pain or severe pain, then--or
22           significant pain--then he should have been sent to
23           the emergency room to make sure that he did not
24           have a complication of the colonoscopy and
0093
 1           polypectomy.
 2   Q       Now, we know that he did have a perforation based
 3           upon the studies that were done at the hospital and
 4           then ultimately the autopsy, correct? 
 5   A       That's correct. 
 6   Q       If he had been directed to the emergency room with
 7           sharp pain and had been seen eight, nine o'clock at
 8           the hospital and Dr. Poleski or Dr. Melamud, any
 9           reasonably competent gastroenterologist, had either
10           seen the patient or given orders to the emergency
11           room, what would have been the treatment algorithm
12           that would have been implemented at that time to
13           work the patient up?
14   A       If he had abdominal--significant abdominal pain,
15           sharp pain, been sent to the emergency room, he
16           would have been seen, examined.  His vital signs
17           would have been taken.  He would have had an
18           abdominal series done and/or a CAT scan.  And then
19           if he was found to have a perforation, he would
20           have been given IV fluids, antibiotics, and a
21           surgeon would have been consulted.
22   Q       How soon would you expect, given some variance of
23           time--but how soon would you have expected that
24           kind of workup to have taken?
0094
 1                     MR. POLITO:  Objection.  Go ahead,
 2           Doctor. 
 3   A       I can't tell you.  It could have taken twelve
 4           hours.  It could have taken six hours, five hours. 
 5           It's hard to know.  It depends on how busy the
 6           emergency room is, how severe they thought his
 7           symptoms were.  I mean, he could have sat in the
 8           emergency room for two, three hours 'til they got
 9           him in.  Very hard for me to tell you.
10   Q       Doctor, would you agree that complications of a
11           colonoscopy are rare but can be serious and life-
12           threatening?
13   A       Yes.
14   Q       Would you agree that a colonoscopy with a
15           polypectomy carries a higher rate of complication
16           than a colonoscopy that does not involve a
17           therapeutic polypectomy? 
18   A       It--it--you know, that's a broad statement.  It--
19           the--the risk of a polypectomy is slightly higher
20           than a regular colonoscopy.  But most of the risk
21           is in the colonoscopy itself, I'd say about ninety
22           percent of the risk.  
23                     And when you say "polypectomy," you're
24           talking about different kinds of polypectomies. 
0095
 1           Some polypectomies--we have flat sessile polyps
 2           that carry a significant risk of perforation and--
 3           whereas the small polyps, I don't know if they have
 4           a much greater risk than--than a standard
 5           colonoscopy.  
 6                     So we're not talking about degrees of
 7           magnitude.  You know, like the risk is not ten
 8           times higher or five times higher.  It's--it's a
 9           few percentage points higher, two, three percentage
10           points higher.
11   Q       Thank you.
12                     There was a sessile polyp involved in Mr.
13           Thompson, was there not?
14   A       There was.
15   Q       Are right-sided sessile polyps thought to present
16           the highest risk of perforation? 
17   A       Again, we got to talk about size.  You know, if
18           you're talking about a five-millimeter polyp, the
19           risks are not that great.  If you're talking about
20           the two, three, four-centimeter flat sessile polyp
21           that's found in the cecum, those have by far the
22           highest complication.  So the cecum is the highest
23           risk of complication because it--the bowel wall is
24           thin there. 
0096
 1                     In the ascending colon and transverse
 2           colon, which are also thought of as the right
 3           colon, the risks are not as great.  But again, you
 4           know, all polyps are not the same.  And so it
 5           depends on the size of the polyp, not--not just
 6           sessile.  Certainly a--a two-centimeter sessile
 7           polyp is a high risk--a higher risk than a five-
 8           millimeter polypectomy.
 9   Q       What is your understanding as to the location of
10           the sessile polyp in Mr. Thompson's case?
11   A       I understood he took out two polyps, one in the
12           rectum and one in sort of sig--sigmoid descending
13           junction.
14   Q       Would either of those constitute right-sided
15           sessile polyps? 
16   A       No.  Well, the polyp was sessile, but it wasn't
17           right-sided, and it wasn't very large.  So I don't
18           think a average experienced guy--gastroenterologist
19           would think of it as a risky sessile polyp.  Most
20           polyps of that size, which are the vast majority of
21           polyps that are taken out, are small and sessile.
22   Q       You're familiar with studies that have been done on
23           screening as well as diagnostic colonoscopies that
24           have reported the major complications that have
0097
 1           occurred as a result of colonoscopies, are you not?
 2   A       Yeah.  There are several studies out there.  
 3   Q       Are you familiar with the CORI study--
 4   A       No.
 5   Q       --C-O-R-I?
 6   A       No.
 7   Q       Clinical Outcome Research Initiative.  You're not
 8           familiar with that?
 9   A       You're talking about the--the thing--the Corcrin's
10           [phonetic]?  You're talking about Corcrin--
11   Q       No, C--C--C-O-R-I, Clinical Outcomes Research
12           Initiative.
13   A       No.  I've heard of it, but I'm not familiar with it
14           in this case.
15   Q       Did Mr. Thompson in your opinion suffer some type
16           of a cerebral vascular accident? 
17   A       You're asking me causation now, aren't you? 
18   Q       Well, based upon what you see in the autopsy, is
19           there a suggestion--and you've already indicated
20           that you don't have an opinion-- 
21   A       Yeah.  I have--I--I have an opinion that he either
22           had a seizure, a stroke or a cardiac arrhythmia
23           that led to his demise.
24   Q       Okay.  And none of them are you able to say which--
0098
 1           whether--which one is more likely than the other or
 2           which one to a reasonable degree of probability
 3           ultimately was the cause--
 4   A       Yeah. 
 5   Q       --you just have those three possibilities, correct?
 6   A       Yeah.  I think it's one of those three
 7           possibilities.  And it's based on the autopsy
 8           report and the patient's history. 
 9   Q       But again, just so that we're clear, you're not
10           able to state which one of those possibilities, if
11           any, arises to more likely than not the cause.  Is
12           that a fair statement? 
13   A       No, it's not.
14   Q       I'm sorry?
15   A       It's not a fair statement.  I said to you that I
16           thought that one of those three possibilities is
17           the cause of his death, but I don't know which one,
18           and so I can't--
19   Q       Okay.  Now, when I referred a moment ago to
20           cerebral vascular accident, what--would any of
21           those possibilities fall within the area of a
22           cerebral vascular accident? 
23   A       Well, I said a stroke is a cerebral vascular
24           accident, so it's--it's a possibility.
0099
 1   Q       Okay.  
 2   A       I'm not used to looking at autopy--autopsy reports
 3           of the brain, and so I--I can't--as I've stated to
 4           you at the very beginning when we had this whole
 5           conversation, I'm not an expert in neurology, nor
 6           am I an expert in neuropathology.  
 7                     When you tell most physicians that
 8           there's a cerebral infarction, I--I think of
 9           stroke.  If you tell me somebody has anoxia, then
10           that's--that's a different description.  So I--I'm
11           confused by that, and I would defer to an expert in
12           cerebral pathology.  
13                     But what--what--can you--can you get
14           anoxia and cerebral infarction in the same patient
15           or not; what are the causes of that?  I'm not sure. 
16           Confusing to me.  
17   Q       Fair enough.
18   A       But I'm a gastroenterologist, so I work below the--
19           below the chest most of the time.
20   Q       I--
21   A       Well, except for when I do endoscopies.  Below the
22           neck.  Let's put it that way.  No, I can't even say
23           that.  Below the nose.  How's that? 
24   Q       All right.  I get the general drift of what you're
0100
 1           telling me.
 2                     Are you aware of any studies that have
 3           shown patients developing as a major complication
 4           following a perforation a stroke or a cerebral
 5           vascular accident resulting in anoxic brain injury?
 6   A       I--I know that patients do have strokes.  They have
 7           cardiac arrests.  They have any of these.  They
 8           have arrhythmias that can occur either during the
 9           procedure or after the procedure.  So--but of
10           course if you're a scientist, you would say that
11           people have that when they're, you know, eating
12           dinner, when they're walking the streets, when
13           they're watching TV.  
14                     I have a friend of mine, late surgeon,
15           who dropped dead testifying in a court, and they
16           didn't sue the judge or the plaintiff. 
17   Q       Well, Doctor, I obviously--with all--let--let's
18           seriously talk about this case and not about
19           somebody--that--that unfortunate situation had--
20   A       No, I'm trying to make a serious point to you,
21           that--that the--you know, if--it comes back to my
22           thing of true, true, unrelated.  I mean, you are
23           talking about a rare event that happens frequently
24           every day to people not having colonoscopies.  
0101
 1                     And so the point I'm trying to make is
 2           that, yes, people have cardiac arrests, have
 3           strokes, have a va--seizures, have a variety of
 4           events that occur in and around a colonoscopy
 5           either before, during or afterwards.  Whether they
 6           are related to the colonoscopy as cause and effect
 7           is what I'm questioning. 
 8   Q       Okay.  And, Doctor, again, what you said to me
 9           before is that if Mr. Thompson had been directed to
10           the hospital because of a complaint of pain and had
11           been in the hospital--I believe you told me--
12           correct me if I'm wrong, please--that you believe
13           that he would have died anyway even if he was in
14           the hospital being worked up and being managed;
15           from a hemodynamic standpoint, he was likely to die
16           anyway.
17   A       I believe that his management of the perforation as
18           I described would not have prevented the events
19           that occurred. 
20   Q       Well, is there anything, Doctor, that you believe
21           would have been done had he been in the hospital to
22           evaluate the potential of a perforation that would
23           have reduced the likelihood of this patient dying?
24                     MR. POLITO:  Objection as to form.  Go
0102
 1           ahead, Doctor. 
 2   A       Well, the--the three scenarios I told you of what I
 3           think caused his death--again, I'm not an expert
 4           in--in either neurology or cardiac disease--he
 5           could have just as well have arrested in--in his
 6           hospital room as well as--you know, so I don't know
 7           where he would have been.  He could have arrested
 8           in x-ray.  He could have arrested in the waiting
 9           room.  So that's what I'm saying.
10   Q       And would he have had a better opportunity of
11           survival in your opinion-- 
12                     MR. POLITO:  Objection as to form.  
13                     MR. MISHKIND:  Let me finish please.
14                     MR. POLITO:  Oh, I'm sorry about that.
15                     MR. MISHKIND:  That's okay.  Not a
16           problem.  Your objection still will be noted, John.
17                     MR. POLITO:  Thank you.  
18   Q       Would he have had a better opportunity to survive
19           regardless of what--which one of those three items
20           you believe caused his death if he was in the
21           hospital as opposed to laying in his bed at home
22           when he arrested?
23                     MR. POLITO:  Objection as to form.  Go
24           ahead, Doctor. 
0103
 1   A       It would be speculation on my part that I would
 2           suspect that he would have a slightly better
 3           chance.  But how much better I don't know because I
 4           don't know, you know, where he would be in the
 5           hospital.  If--certainly if he arrested and was
 6           being observed at the moment of his arrest, then he
 7           would have a better chance of survival.
 8   Q       The colonoscopic polypectomy that Dr. Melamud did,
 9           that was a hot biopsy, am I correct? 
10   A       That's correct. 
11   Q       And was that with or without electrocautery?
12   A       I assume it was done with electrocautery.
13   Q       I'm sorry, sir? 
14   A       Hot biopsies means that you're using
15           electrocautery.
16   Q       How does a hot biopsy differ from a snare?
17   A       Well, you can biopsy without cautery or you can
18           biopsy with cautery.  You can snare with cautery or
19           you can snare without cautery.  Cautery just means
20           you apply an electric current that burns part of
21           the tissue.  It--its advantage is that it prevents
22           bleeding and it destroys any tissue that you may
23           have not caught.
24   Q       Doctor, in this case, was the polypectomy that was
0104
 1           done and the hot biopsy--was it done with a snare?
 2   A       I don't think so.  I didn't look at the details.  I
 3           think it was done with a hot biopsy, which is
 4           forceps.  That's what I assume.  When I hear the
 5           term "hot biopsy," I assume that what is being used
 6           is a biopsy device through which you can put a
 7           current through, not a snare.  That's the correct
 8           terminology.  If that's not what was done, then
 9           it's not a hot biopsy; it's a snare polypectomy.
10   Q       What is a postpolypectomy coagulation syndrome?
11   A       It's a syndrome that is caused by the--if the burn
12           that's caused by the cautery, whether it's a hot
13           biopsy or a polypectomy--if you apply current and
14           the current goes right through the wall of the
15           colon, it's a burn. 
16                      And the colon itself actually doesn't
17           have--the interior part of the colon doesn't have
18           any pain fibers.  All our pain fibers are basically
19           at the outside on the lining of the colon or on the
20           outside area.  That's why we can--you can sense
21           cramping and things like that.  But you--if I do a
22           flexible sigmoidoscopy, which I've done thousands
23           of, and take a biopsy, you're not likely to feel
24           anything. 
0105
 1                     So if that burn goes right through the
 2           wall, it then goes right into the area that has
 3           sensation.  And like burning your finger, it causes
 4           pain.  And so the postpolypectomy syndrome occurs
 5           in a small percentage of patients who have cautery
 6           done for whatever reason, whether it's a hot
 7           biopsy, hot snare polypectomy, APC coagulation.  
 8                     If the burn goes through the wall, the
 9           patient then senses it.  It can be mild pain.  It
10           can be severe pain.  It can be associated with
11           fever.  And the--the classic syndrome is pain and
12           fever at the site of the polypectomy.  And it's
13           usually treated with antibiotics.  
14                     If it's mild, I've known patients to be
15           treated as outpatients.  If it's more severe,
16           particularly if they have a temperature, they're
17           admitted into hospital; they're given IVs, kept
18           NPO, given IV antibiotics.  The syndrome can worsen
19           in that if the necro--if the area necroses, then
20           you sort of lose the entire wall and you end up
21           with a perforation.  
22                     In my experience, the majority of
23           patients do well with just IV antibiotics, kept NPO
24           a few days in hospital. 
0106
 1   Q       If Mr. Thompson had been admitted to the hospital
 2           say nine o'clock in addition to the workup with the
 3           CT and the evaluation, would he have been started
 4           on IV antibiotics and fluids?
 5                     MR. POLITO:  Objection.  Go ahead,
 6           Doctor. 
 7   A       If he had been admitted to hospital--now, you know,
 8           I would assume he would have got there around nine
 9           o'clock.  He would have been worked up.  And I've
10           said before I don't know how long it would take to
11           work this patient up.  It could take hours.  But
12           eventually he would--assuming they--they found the
13           perforation, they would start him on IV fluids and
14           IV antibiotics.
15   Q       Is--are you saying that before they confirm the
16           perforation, that IV fluids would not have been
17           standard in terms of a hemodynamic--
18   A       It depends on what state they thought the patient
19           was.  If he sort of walked in and said, you know,
20           "I've got a little pain on my side here, and I just
21           had a colonoscopy," they may have just drawn some
22           blood tests, and, you know, they would have
23           examined him.  And depending on that exam, if the
24           physician thought that there was something serious
0107
 1           going on, he would have maybe started an IV and
 2           given him antibiotics or physician may have sent
 3           him off to x-ray first to confirm the diagnosis.  
 4                     So, you know, the--the decision to start
 5           an IV would depend on how the admitting--or the
 6           emergency physicians felt how serious he was at the
 7           time he walked in there. 
 8   Q       If the patient had been transported by ambulance
 9           with a history of pain which was now roughly ten to
10           twelve hours after having had the colonoscopy, in
11           your experience, do most EMTs or ambulances when
12           they transport a patient start an IV just as a
13           matter of routine?
14                     MR. POLITO:  Objection.  Go ahead.
15   A       I--I--I don't know what an EMT does as a routine
16           so--
17   Q       And as a matter of routine, when a patient arrives
18           in the emergency room with severe pain twelve
19           hours--ten to twelve hours after a colonoscopic
20           polypectomy, generally don't emergency rooms start
21           an IV line and provide fluids as the first
22           algorithm of treatment? 
23                     MR. POLITO:  Objection. 
24   A       The first algorithm of treatment is to assess the
0108
 1           patient and examine the patient and then--
 2   Q       And that would be done--
 3                     MR. POLITO:  Wait.
 4   Q       --presumably--
 5                     MR. POLITO:  Howard, wait a minute.
 6   A       Can I finish?
 7                     MR. MISHKIND:  I'm sorry.  Did I cut him
 8           off? 
 9                     MR. POLITO:  Yes, you did.
10   A       Yeah, you did.
11   Q       I'm sorry, Doctor.  I didn't mean to.
12   A       So--so the algorithm of treatment is when the
13           patient comes in, they're examined.  And depending
14           on what the emergency physician feels is the
15           severity of the situation, they proceed
16           accordingly.  If they don't think that this is a
17           serious event, they may not start an IV.  They may
18           just draw some blood tests and maybe send them off
19           for an x-ray.  And then if they come back and see
20           that there's a perforation, then they of course
21           will start an IV, give the patient antibiotics and
22           then call a surgeon.
23   Q       Well, Doctor, if you were contacted by this patient
24           ten to twelve hours after having performed the
0109
 1           colonoscopic polypectomy and were given the history
 2           that the patient had severe pain; patient had
 3           bloating, was a thin man and appeared to have
 4           abdominal distention to the right and was also
 5           having difficultly in passing gas and all those
 6           three things were conveyed to you, first, would you
 7           have recommended that the patient go to the
 8           emergency room to be evaluated? 
 9                     MR. POLITO:  Objection.  Go ahead,
10           Doctor. 
11   A       Well, the scenario--you know there's some
12           disagreement about this scenario.
13   Q       Right.  I'm giving it to you in a hypothetical, if
14           in fact--
15   A       So--so this is a hypothetical based on Ms. Thompson
16           but not Dr. Melamud's interpretation or--or
17           statement of what he was told, right? 
18   Q       Well, Doctor, let me--you've--it's a hypothetical
19           that I'm giving to you.  We can recognize that Dr.
20           Melamud says one thing; Ms. Thompson says something
21           else.
22   A       Okay.  So as long as we recognize that there's a
23           difference in how the two remember the events--
24   Q       Absolutely. 
0110
 1   A       --we can go forward.
 2   Q       So let me go back to my--
 3   A       Right. 
 4   Q       --my hypothetical.
 5                     If the patient conveyed to the doctor
 6           that he had pain that was severe--and I guess
 7           severe really isn't critical--but he had pain; he
 8           had abdominal bloating and was unable to pass
 9           flatus, to--to pass gas, and it was now ten hours
10           since the polypectomy had been done and it's about
11           eight P.M. in the evening, what would you have done
12           with that patient? 
13                     MR. POLITO:  Objection.  Go ahead,
14           Doctor. 
15   A       If the patient had significant pain, I would have
16           told him to go to the emergency room. 
17   Q       And would you have told him to drive or to call an
18           ambulance?
19                     MR. POLITO:  Objection.  Go ahead,
20           Doctor. 
21   A       Again, it depends on the severity of his pain, how
22           close he is to the emergency room, how sick I
23           thought he was, if his wife could drive, how
24           quickly EMT responds in that city.  I mean, I--I
0111
 1           may have told him to--if the emergency room was
 2           nearby and his wife could drive, I would say, you
 3           know, "Why don't you drive him to the emergency
 4           room or get a cab and just go to the emergency
 5           room." 
 6   Q       If you had directed him to the emergency room with
 7           those symptoms, would you have also been in contact
 8           with the emergency room so that appropriate orders
 9           were given for the treatment of your patient? 
10   A       I usually call ahead to the emergency room and
11           either speak to the doctor or they often have a
12           triage RN and tell them, you know, the story and
13           what my concerns are, and they usually take it from
14           there. 
15   Q       Would you agree that colonic perforation during a
16           colonoscopy may result from mechanical forces
17           against the bowel or as a direct result of the
18           therapeutic procedure? 
19   A       Can be caused by either, yes.
20   Q       Early symptoms of a perforation include persistent
21           abdominal pain.  Is that an accurate statement?
22   A       Yeah, that's usually the va--the most common one.
23   Q       And abdominal distention?
24   A       Abdominal distention along with abdominal pain.
0112
 1   Q       I'm sorry?
 2   A       I--I don't think, you know, people who have
 3           perforation complain in my experience of just a
 4           little bloating.  They complain of pain--
 5           significant pain.
 6   Q       Now, Doctor, is it common after a colonoscopy,
 7           therapeutic or other--otherwise, to have within the
 8           first hour or two after the procedure some degree
 9           of bloating?
10   A       Yes.
11   Q       Is it less common ten to twelve hours after the
12           procedure to have bloating?
13   A       The bloating decreases over time but can last even
14           a couple of days.
15   Q       But can we agree that as time goes on, it's more
16           common within the first hour or two and less common
17           twelve hours afterwards? 
18                     MR. POLITO:  Objection.  Go ahead.
19   A       Well, I think I've answered it.  I think it--it
20           does decrease over time, but a lot of patients are
21           uncomfortable or bloated for the whole day and
22           some--sometimes a day or two afterwards.  I've had
23           patients tell me they were uncomfortable for a week
24           afterwards or they were bloated for a week
0113
 1           afterwards.
 2   Q       What is a mini perforation? 
 3                     MR. POLITO:  I'm sorry.  I didn't hear
 4           you, Howard.
 5   Q       A mini perforation, m-i-n-i.
 6   A       I don't know what a mini perforation is.  A
 7           perforation is like being pregnant.  It's a
 8           perforation.  The--what happens is that if it--the
 9           patient is not significantly symptomatic, that
10           they--they don't have a temperature; they seem to
11           just have pain, that some physicians will just try
12           to treat them for the first twenty-four to forty-
13           eight hours with just either fasting, plus or minus
14           an NG tube, and IV antibiotics and see if the small
15           perforation will just seal on its own.  
16                     So if there's just a small amount of air;
17           patient seems to be okay except for the pain; vital
18           signs are stable; they're not febrile; white count
19           is not elevated or not significantly elevated, you
20           can try to avoid surgery by doing that. 
21   Q       Would you agree with this statement, that a mini
22           perforation is characterized by early presentation,
23           within six to twenty-four hours after a
24           polypectomy, with local pain and tenderness,
0114
 1           without signs of diffuse or spreading peritoneal
 2           irritation?
 3                     MR. POLITO:  Objection.  Go ahead,
 4           Doctor. 
 5   A       I don't know what you define as early.  To me, an
 6           early perforation is one that's picked up
 7           immediately after the procedure.  So I don't call
 8           those early.  What you're describing can occur six
 9           hours to forty-eight hours after a--after a
10           therapeutic procedure, or--or even a minor tear can
11           present a day or two later with some pain.
12   Q       Would you agree with me, Doctor, that patients with
13           a mini perforation can be treated not infrequently
14           with bowel rest, IV antibiotics and frequent serial
15           examinations for clinical deterioration?
16                     MR. POLITO:  Objection.  Go ahead,
17           Doctor. 
18   A       Well, I think I--that's what I described, didn't I?
19   Q       I--you may have described it but not necessarily in
20           those words.
21                     You would agree with that statement,
22           correct? 
23   A       That's correct. 
24   Q       Okay.  
0115
 1   A       Right.  Yeah.
 2   Q       Now, if the patient--have you--after a therapeutic
 3           colonoscopic polypectomy where a patient has been
 4           given appropriate bowel prep, have you ever
 5           prescribed a Fleet enema to a patient that called
 6           in twelve hours--ten to twelve hours after having a
 7           polypectomy?
 8   A       No.
 9   Q       Do you have any--in this case, if Mr. Thompson
10           called ten to twelve hours afterwards, had bloating
11           but didn't complain of any pain but had had a
12           therapeutic polypectomy, would you, Dr. Poleski,
13           have recommended that the patient try an enema to
14           relieve his symptoms? 
15                     MR. POLITO:  Objection.  Go ahead,
16           Doctor. 
17   A       That's not what I use, no.
18   Q       Doctor, do you know anywhere in the medical
19           literature that you're aware of that the use of an
20           enema under those circumstances would be within
21           accepted standards of practice? 
22                     MR. POLITO:  Objection.  Go ahead,
23           Doctor. 
24   A       No, I--I don't--I don't know if there's any
0116
 1           literature on what the ex--the--what the accepted
 2           standard of practice is for people that have
 3           bloating postcolonoscopy.
 4   Q       But certainly you as a board-certified
 5           gastroenterologist having done thousands of
 6           colonoscopies would not recommend a Fleet enema to
 7           a patient that had appropriate bowel prep and had
 8           undergone twelve hours earlier a colonoscopic
 9           polypectomy, correct? 
10                     MR. POLITO:  Objection.  
11   A       I don't use that method to get the bowel going.
12   Q       And do you know anyone in the area of
13           gastroenterology that uses it as a reasonable
14           measure to treat a patient twelve hours after
15           undergoing a therapeutic polypectomy?
16                     MR. POLITO:  Objection.  Go ahead,
17           Doctor.  
18   A       I know no literature on it.  I've never discussed
19           it with anybody.  So I don't know what people use
20           for bloating.  There's a variety of things people
21           use.  Whether people use Fleet enemas or not, I
22           have no idea.
23   Q       Well, Doctor, you're familiar with the warnings on
24           Fleet's enema, are you not?  
0117
 1   A       Yes.
 2   Q       And Fleet's enemas are used for the relief of
 3           occasional constipation, correct? 
 4   A       Yes.
 5   Q       Doctor? 
 6   A       Yes.  I said yes.
 7   Q       Oh, I'm sorry.
 8                     Or bowel cleansing before a rectal exam,
 9           correct? 
10   A       That's correct. 
11   Q       Is there any indication that Mr. Thompson was
12           constipated?
13   A       I think he was having difficulty passing flatus.  I
14           don't think he was constipated.  His bowel was
15           already cleared out.  
16   Q       Okay.  Is there any clinical indication for the use
17           of an enema in your professional opinion in this
18           case if the patient had been cleaned out and calls
19           with--with bloating twelve hours afterwards? 
20                     MR. POLITO:  Objection.  Go ahead.
21   A       Well, I think you want to give some symptomatic
22           relief.  And I don't think there's any literature
23           on what the best symptomatic relief is if you think
24           the patient is unable to pass gas.  And so I don't
0118
 1           use an enema.  I don't know how many people do. 
 2           I've never asked them.
 3                     What I usually do is just tell them to
 4           drink some liquids, walk around a bit and see if
 5           they can get themselves going.
 6   Q       Doctor, there's a risk, is there not, of using a
 7           Fleet's enema in terms of causing electrolyte
 8           imbalance? 
 9   A       If you take it orally, yes.  That's why we don't
10           use Fleet Phospho-sodas very often anymore in most
11           patients, particularly people with hypertension and
12           that.  But that's orally.
13   Q       Doctor, doesn't a Fleet's enema contain sodium
14           phosphates?
15   A       It does.
16   Q       And isn't there a risk of elevated serum levels of
17           sodium and phosphate and decreased levels of
18           calcium and potassium associated with the Fleet's
19           enema?
20   A       I've only seen that in patients taking it orally. 
21           Whether--I--I think people who have renal failure,
22           who have poor kidneys, we--we attempt not to use
23           Fleet Phospho-sodas.  But Fleets, as you know, are
24           over the counter, and people use them all the time. 
0119
 1           And I've never noticed in patients who take it as
 2           an enema that there is electrolyte imbalances in
 3           the normal population.
 4   Q       Well, Doctor, there's--what's a package insert?
 5   A       Package insert is something that the FDA asks the
 6           manufacturer to put in with a device or a
 7           medication. 
 8   Q       And you as a physician are aware that the package
 9           inserts have professional use warnings on the--on
10           the--on the--the drugs, including professional use
11           warnings on a Fleet's enema?
12   A       Uh-huh (yes).  
13                     MR. POLITO:  Howard--yeah--just let me
14           note--and so I don't have to keep interrupting      
15           you--to any references to the FDA--
16                     MR. MISHKIND:  Well, I'm--I'm referring
17           not necessarily to the FDA but to package inserts.
18   Q       You've seen package inserts, and I presume you're
19           aware that Fleet's enema would not be any different
20           in terms of having a package insert and
21           professional use warnings on them, correct? 
22   A       That's correct.  Every drug, every device has a use
23           warning, yeah.
24   Q       So if the package insert indicates that Fleet's
0120
 1           enemas contain sodium phosphates and there's a risk
 2           of elevated serum levels of sodium and phosphate
 3           and decreased levels of calcium and potassium and
 4           consequently hypernatremia, hyperphosphatemia and
 5           hypocalcemia and hypokalemia and acidosis may
 6           occur, you wouldn't have any basis to dispute those
 7           as potential complications of using a Fleet's
 8           enema, would you? 
 9                     MR. POLITO:  Objection.  
10   A       Well, those--those are potential complications. 
11           It's sort of amazing if it causes that in everybody
12           that they even allow it to be sold.
13   Q       But certainly as a physician that's going to tell a
14           patient to use a Fleet's enema, we can agree that
15           you need to be knowledgeable as to what the
16           professional use warnings are as to the efficacy
17           and appropriateness of using a particular drug,
18           correct? 
19                     MR. POLITO:  Objection. 
20   A       That's correct. 
21   Q       Would you agree that early recognition of
22           complications and prompt intervention may decrease
23           patient morbidity?
24                     MR. POLITO:  Objection. 
0121
 1   A       That's correct.  I--I don't know how you define
 2           "early" but--
 3   Q       Risk factors for polypectomy--I'm sorry.  I
 4           thought--I thought you might have been saying
 5           something, Doctor.
 6   A       No.
 7   Q       Okay.  Risk factors for polypectomy include--are--
 8           the risk factors that you have to take into account
 9           are the location or size of the polyp, correct? 
10   A       That's correct. 
11   Q       The experience of the operator? 
12   A       That's correct. 
13   Q       The polypectomy technique?
14   A       That's correct. 
15   Q       And the type of electrocoagulation current used?
16   A       That's correct. 
17   Q       Would you agree that complications from a procedure
18           are more likely to occur with therapeutic
19           procedures rather than diagnostic procedures? 
20                     MR. POLITO:  We've already gone over
21           that, but go ahead, Doctor. 
22   A       I think I said before there was a slight increase
23           with therapeutic procedures depending on their
24           nature.
0122
 1   Q       Okay.  If Mr. Thompson had pain twelve hours        
 2           after--ten to twelve hours after the procedure and
 3           it was conveyed to Dr. Melamud, Dr. Melamud, in
 4           order to comply with the standard of care, should
 5           have had a colonic perforation within his
 6           differential, correct? 
 7   A       If he had communicated the--your statement of pain,
 8           yes.
 9   Q       And if pain was conveyed and he didn't refer the
10           patient for observation and evaluation at the
11           hospital, that would be a violation of the standard
12           of care, correct? 
13                     MR. POLITO:  Howard, how many times do
14           you want him to ask [sic] the same question? 
15           That's already been asked.  Answer one more time,
16           Doctor, and that's it.
17   A       If the patient had told Dr. Melamud that he was in
18           pain, the standard of care required Dr. Melamud to
19           send him to the emergency room for examination. 
20   Q       Now, do you agree with this statement, that it's
21           always better to play it safe and have a patient
22           seen in the emergency room if the patient is
23           complaining of bloating twelve hours after a
24           polypectomy if it is after hours and the
0123
 1           physician's office is not open?
 2                     MR. POLITO:  Objection. 
 3   A       No.
 4   Q       Tell me why.
 5   A       Well, 'cause you--you can speak to a patient.  And
 6           if--if you think that the patient is fine and has
 7           some minor bloating after the procedure, you can
 8           tell him to do X, Y, Z and ask him to call back in
 9           the next half hour to an hour, or if he doesn't get
10           better or is getting worse, he can go directly to
11           the emergency room.  
12   Q       The abdominal films that were taken at South Pointe
13           Hospital showed intraperitoneal air, correct? 
14   A       That's correct. 
15   Q       And that's consistent with the colon perforation,
16           correct? 
17   A       Correct.  Well, it's consistent with a perforation
18           of a abdominal viscous.  So it's consistent--       
19           let's--since we're trying to be sort of very picky
20           here, it's consistent with perforation of the
21           stomach, duodenum, esophagus, colon.
22   Q       Once that CT scan was done--or the abdominal film
23           was done showing intraperitoneal air, what--from a
24           treatment algorithm standpoint, what would the next
0124
 1           treatment or intervention have been in a patient
 2           who is--is hemodynamically stable, in other words,
 3           doesn't present after having arrested?  If the
 4           patient is seen, is conscious and alert but is in
 5           pain and has intraperitoneal air, what algorithm do
 6           you go down at that point, Doctor? 
 7                     MR. POLITO:  Note my objection.  Go
 8           ahead, Doctor. 
 9   A       Well, at that point you would give the patient IV
10           hydration; you'd give him IV antibiotics, and you
11           would call for a surgical opinion.  And depending
12           on how much pain the patient was in, you may want
13           to wait before giving him pain medication 'til the
14           surgeon evaluates him or her.
15   Q       Can we agree that by the time the patient arrives
16           at the hospital, that there was no way to assess
17           clinically the degree of any pain that the patient
18           had?
19                     MR. POLITO:  Are--are you talking now
20           this patient, Howard?  I'm sorry.
21                     MR. MISHKIND:  Yes.  Yes, John.
22                     MR. POLITO:  Okay.  I'm sorry.
23                     MR. MISHKIND:  Yeah.
24   A       That's correct if you're talking about Mr.
0125
 1           Thompson.
 2   Q       Right.  And was there any way to clinically assess
 3           whether or not he had--other than the--the--the
 4           film, which was consistent with the abdominal
 5           process, was there any way to determine the degree
 6           of his abdominal distension?
 7   A       Well, I mean, you could still examine the patient
 8           if you're looking for abdominal distension.  I
 9           think--I think it would be harder to assess for
10           peritoneal signs in view of the fact that he was
11           comatose.  So I'm--I'm not quite sure how accurate
12           those would be under that circumstance.  I think it
13           would be harder to assess that.  But distension
14           could be assessed.
15   Q       I'm sorry?
16   A       Distention could be assessed clinically.
17   Q       Okay.  Doctor, if the patient during this telephone
18           call--and recognizing that Dr. Melamud said one
19           thing; Ms. Thompson said something else.  But
20           ultimately if Dr. Melamud recommended a Fleet's
21           enema, we've already established that there was     
22           no--that you can appreciate no clinical
23           justification for it.  But let's just assume for a
24           moment that a Fleet's enema is prescribed to the
0126
 1           patient.  Is it reasonable for the patient to
 2           comply with the doctor's recommended course of
 3           treatment? 
 4                     MR. POLITO:  Okay.  Just--just note my
 5           objection for mischaracterization of the doctor's
 6           testimony, but go to the second part of the--of the
 7           question, is it reasonable to comply.
 8   A       I'll--I'll just answer the second part of the
 9           question, was it reasonable for the patient to
10           comply.  So it's reasonable for the patient to
11           comply with the patient's--with the doctor's--
12           Melamud's recommendation, which was to take the
13           enema and if he didn't feel better or felt worse to
14           either call him back or go to the emergency room. 
15   Q       Now, can you pinpoint based upon your review of
16           this case how long a period of time elapsed after
17           which the enema was administered and it was no
18           longer reasonable for the patient to not call back
19           the doctor or go to the emergency room? 
20   A       I don't understand your question. 
21   Q       Fair enough.
22                     In your report, you stated that he--that
23           Ms. Thompson went out to get the enema and the
24           patient used it and he did not call back.  Can you
0127
 1           tell me based upon your review how much time
 2           elapsed between when the patient used the enema and
 3           when it is that you believe that the patient should
 4           have called back?
 5   A       Well, I--I have to depend there on Ms. Thompson's
 6           testimony.  And I think she said that she got it
 7           relatively quickly.  And it sounds like--so if--if
 8           the--the doctor applied [sic] around eight o'clock,
 9           it sounded to me like he'd had the enema by around
10           eight-thirty or before nine.  And so it'd be some
11           time around nine-thirty or so he should have called
12           Dr. Melamud back or ten o'clock at the latest, I
13           would assume.
14   Q       And do you believe that--that the patient is at
15           fault for not calling back Dr. Melamud after using
16           the Fleet's enema?
17   A       I don't know what you mean by "at fault."  He--
18   Q       Well-- 
19   A       You asked me a question about whether he should
20           comply with the doctor's recommendations, and I
21           said he should comply with Dr. Melamud's--Melamud's
22           recommendations.  And Ms. Thompson also said in her
23           testimony that he--she did agree that the--Dr.
24           Melamud had told them to call back and that she
0128
 1           asked her husband several times to call, whether he
 2           was feeling better or not, and he elected not to
 3           call back.
 4                     So I don't know if it's a matter of
 5           fault.  It's just those facts are not in question. 
 6           He didn't call back, and we know that Dr. Melamud
 7           asked that the patient call back.  That's all I can
 8           tell you.  But we can let a jury or a group of his
 9           peers decide whether he was at fault or not.
10   Q       How long is it reasonable for a patient--well, I
11           guess that's a poor question 'cause you wouldn't
12           have used an enema under these circumstances
13           regardless of what the symptoms were, correct? 
14   A       I--I would have used a therapeutic measure.  And
15           like Dr. Melamud, I--I--in this case, I--I don't
16           use enemas, but I told you what I do use.  And if--
17           I would have told the patient the same thing, "If
18           you're not back--better or worse within half an
19           hour to an hour, either call me back or go to
20           emergency room."
21   Q       Now, in this case, Dr. Melamud--the first thing was
22           an enema, so there was a period of time for Ms.
23           Thompson to get the enema, to give it to her
24           husband and then for her husband to self-administer
0129
 1           the enema, correct? 
 2   A       That's correct. 
 3   Q       And then the precise time that the enema was self-
 4           administered, you're not clear on that from the
 5           testimony, are you? 
 6   A       Well, I have a rough idea.  I mean, the only person
 7           that would know exactly is Ms. Thompson at this
 8           point.  But she did say she went out and got it
 9           right away and he took it right away so--
10   Q       How long would one expect--if a--an enema was
11           appropriate to give under these circumstances, how
12           long would one expect to have to wait for the
13           effects of the enema to relieve the symptoms? 
14   A       I think within half an hour. 
15   Q       And then after a half an hour, if we add that on,
16           that's when you grasp on to Ms. Thompson's
17           testimony that she asked her husband and--a couple
18           times and they didn't call him back; he just laid
19           on the bed or on the couch?
20   A       Yeah, I think he laid on the couch, and he was
21           watching TV, and he was dozing on and off she said.
22   Q       Okay.  Now, you mentioned that Ms. Thompson left
23           him to get dressed to go out to work that night.
24   A       I didn't mention it, but it's in the de--her
0130
 1           deposition.  She didn't go--
 2   Q       Okay.  So what you're-- 
 3   A       Excuse me.  She did not go out to go to work.  I
 4           think she said she went to another room to get
 5           dressed to go out to work.  Isn't that correct? 
 6   Q       Well, I'm--Doctor, you're the one that reviewed the
 7           information.  And I'm--
 8   A       Well, then you're in error.  I reviewed it and I
 9           think you're misstating Ms. Thompson's testimony. 
10   Q       Okay.  
11   A       She did not go out to work.  She--
12   Q       That's--that's--that's fine, Doctor. 
13   A       Can I finish, please? 
14   Q       Oh, I'm--
15   A       She--you--can I finish?
16   Q       Doctor, again, I apologize if I cut you off.
17   A       You cut me off.  You said that she went out to
18           work.  And I'm saying that you misspoke, that she
19           went to another room to get dressed to go out to
20           work.  I don't think she ever left and went out to
21           work because Mr. Thompson arrested prior to her
22           leaving.
23   Q       And I guess what I'm asking you is reading that
24           sentence Ms. Thompson left him for a short time to
0131
 1           get dressed to go out to work--
 2   A       Right. 
 3   Q       --that night--and what did you mean when you said
 4           that she left for a short time to get dressed to go
 5           out to work?
 6   A       I meant I wanted to specify that she went to
 7           another room.  She--when you say "went out," it
 8           sort of implies that she somehow left the building
 9           or left the apartment.  I just want to make clear
10           that she was present at all times.  
11   Q       And from your reading of the deposition, was it
12           your understanding that Ms. Thompson, in terms of
13           her leaving the room but still in the--in the--in
14           the house--that she got dressed and her intention
15           was to go to work that night?
16   A       That's what I read from the deposition, that she
17           was getting dressed to go out to work that night.
18   Q       Okay.  And you still stand by that--what you read
19           in her deposition and what you've stated in your
20           report, is that correct? 
21                     MR. POLITO:  He's reviewing the depo.
22                     MR. MISHKIND:  Okay.  
23   A       (Examines paperwritings.)
24                     MR. MISHKIND:  That's what the silence
0132
 1           was, huh?
 2                     MR. POLITO:  Yes.
 3   A       (Examines paperwritings.)  I guess--she said on
 4           Page 46 that "I was going to go to work the next
 5           day."  So the next day, since it was almost
 6           midnight, I didn't know what she meant by that.  I
 7           didn't know what she meant was she was going to the
 8           next place.  I think she took a shower in that.  
 9                     So she--she was planning to go out to
10           work.  When that time was, I--I'm not quite sure. 
11           I guess because it was around midnight, I assumed
12           she was starting work very early in the morning,
13           but maybe I--she doesn't state exactly when she was
14           planning to go to work.  That's Page 46.
15   Q       Okay.
16                     MR. MISHKIND:  Let's go off the record
17           for just a couple of minutes.  I want to take a
18           look at my notes, Doctor.  We are getting close to
19           the end.
20                     MR. POLITO:  Okay.  
21                     THE VIDEOGRAPHER:  We're off the record
22           at twelve-oh-one P.M.
0133
 1                  ______________________________
 2                       (SIX-MINUTE RECESS)
 3                  ______________________________
 4                     THE VIDEOGRAPHER:  We're back on the
 5           record at twelve-oh-seven P.M.
 6   Q       Doctor, before Mr. Thompson was discharged from the
 7           hospital after undergoing the colonoscopy, was he
 8           able to expel gas according to your review? 
 9   A       I think as I remember it he could, yes.
10   Q       What would explain from a pathophysiology
11           standpoint his inability to pass gas at ten to
12           twelve hours after the procedure if he was able to
13           do so immediately before being discharged? 
14   A       Well, I don't think we have the total answer for
15           that.  But this happens sometimes.  But in this
16           particular case, he--he had a--what I think was
17           called an anal mass removed very low down, so it
18           was sort of at the anus.  And that may have caused
19           some spasm in his anal/rectal area.  I've seen that
20           happen when we do treatments in the rectum, that
21           patients sometimes get spasm and have difficulty
22           passing air afterwards.
23   Q       So that would be a potential explanation for why he
24           couldn't pass gas--
0134
 1   A       Yeah.
 2   Q       --ten to twelve hours afterwards?
 3   A       Yeah.  He would have had some spasm in his rectum
 4           and maybe he would have had some difficulty
 5           relaxing it.
 6   Q       Can an enema induce peristalsis?
 7   A       Well, I think that's what we use it for.  It's--
 8           it's an irritant, and it induces peristalsis.
 9   Q       I'm sorry.  Induce peristalsis.
10   A       I don't--I don't--I don't know what you mean by
11           that.  I mean, it--it depends on what you're
12           talking about.  If--if somebody is--has a paralyzed
13           bowel for some reason, then it's unlikely the enema
14           is going to work.  If the patient has some spasm--I
15           mean, enemas are given all the time to induce
16           peristalsis in people that are constipated.  So I
17           think--I guess it would depend on how you define
18           what--what you--what situation is the patient in. 
19           So--
20   Q       I'm not sure you had finished answering.
21   A       Oh, I finished answering.
22   Q       Oh, okay.  We talked about this a little bit
23           before, but not all perforations require
24           operations; some can be managed conservatively,
0135
 1           right? 
 2   A       That's correct. 
 3   Q       Now, the area where the perforation was identified
 4           at autopsy, can we agree that that perforation was
 5           not the type of perforation that one would expect
 6           to be walled off either by the mesentery or the
 7           peritoneum?
 8   A       I don't think we could agree on that. 
 9   Q       Why is that, Doctor? 
10   A       Well, first of all, the perforation was small.  It
11           was six millimeters, which is pretty small.  In
12           fact, as Dr. Melamud mentioned in his deposition,
13           since this is fixed tissue, it may have been a
14           little smaller in real life.  And so to me, that's
15           an area where people get diverticulitis, which are
16           small walled-off perforations.  
17                     So I think that--that I would consider a
18           small perforation.  And so that could be the kind
19           of perforation that could have been walled off or
20           maybe could have been treated with just IV
21           antibiotics and that.  It--it was a small
22           perforation.  I don't consider that a large
23           perforation. 
24   Q       I'm not suggesting that it was large, but a small
0136
 1           perforation in the area that was identified at
 2           autopsy--
 3   A       See--see--see--go ahead.  Finish.
 4   Q       I guess what I'm trying to understand is is it less
 5           likely to be walled off by the mesentery or the
 6           peritoneum based upon the location of the
 7           perforation? 
 8   A       Well, as I said, that's a common area for
 9           diverticulitis, the sigmoid descending colon area. 
10           So it's a kind of area that, you know, perforations
11           get walled off all the time.  Now, of course it's a
12           different mechanism.  But, you know, by definition,
13           the people who are treated without surgery, we
14           never see the size of their perforation, you know. 
15                     But it would not--usually the kind of
16           perforations, from a clinician's point of view,
17           physiologically speaking, that we can get away with
18           treating nonsurgically are usually the kind of
19           perforation that occurs in this patient that occur,
20           you know, anywhere from six hours to a day or two
21           after the surgery often due to necrosis or
22           coagulation from--from cautery where these
23           perforations are often much smaller.  
24                     And the ones that are picked up usually
0137
 1           sooner, these are the big perforations that are
 2           caused by the instrument itself.  These are, like,
 3           rents or tears.  And they tend to be much bigger
 4           than that.  So I hope I answered your question. 
 5   Q       I think you did.
 6                     When you have free air in the intra-
 7           abdominal cavity, can that result in hypotension?
 8   A       I don't think the--the air itself in my experience
 9           causes hypotension, not that I've seen in my
10           experience of people having perforations from
11           colonoscopies or diverticular disease or
12           postsurgical areas.  I mean, every time they do a
13           laparoscopy today, they leave all kinds of air
14           behind in the colon.  So I don't think the--the air
15           is the problem. 
16   Q       Doctor, based upon your knowledge, training and
17           experience, including your familiarity with the
18           literature, can a perforation in the colon cause a
19           vasovagal response? 
20   A       It probably can.  I would say yes.
21   Q       And if a patient has a vago--a vasovagal response,
22           in terms of hemodynamics, there's a drop in the
23           blood pressure and a drop in the heart rate,
24           correct? 
0138
 1   A       That's correct. 
 2   Q       If a patient is experiencing a vasovagal response,
 3           drop in heart rate and drop in blood pressure and
 4           they're monitored, is that something that would
 5           typically be picked up if the patient is in a
 6           hospital? 
 7                     MR. POLITO:  Objection.  Go ahead,
 8           Doctor. 
 9   A       Well, yeah, it would be picked up.  But, you know,
10           for somebody to have a vasovagal response lying in
11           bed as this patient was--I mean, the consequence of
12           a vasovagal response is you feel faint.  So most
13           people, you know, they feel faint; they may fall
14           down, usually a controlled fall, but occasionally
15           they injure themselves.  
16                     So if this patient was lying in bed and
17           had a vasovagal response--I don't know--he may have
18           developed a bit of a sweat; his pulse may have
19           slowed down a bit.  But I don't--I don't see what
20           other consequence it would have had to him. 
21           Usually people recover fairly quickly from a
22           vasovagal.
23   Q       When Mr. Thompson presented to the hospital, can we
24           agree that he was hypotensive, acidotic and kalemic?
0139
 1   A       Yes.
 2   Q       Can we agree that these are signs and symptoms
 3           consistent with sepsis?
 4                     MR. POLITO:  Objection.  Go ahead,
 5           Doctor. 
 6   A       Well, these are--these can be caused by sepsis or
 7           they could be related to a--a cardiopulmonary
 8           arrest from any source.  I mean, he--he did have an
 9           arrest so--
10   Q       And certainly acute peritonitis can cause sepsis,
11           correct? 
12                     MR. POLITO:  Objection as to form.  Go
13           ahead, Doctor. 
14   A       Well, my experience, peritonitis doesn't cause
15           sepsis acutely.  It--it--it tends to cause it over
16           a period of time so--'cause it would imply that you
17           get peritonitis, bacteria and their toxins get into
18           the bloodstream and then cause sepsis.  So you sort
19           of don't get sepsis--like I couldn't be sitting
20           here and then suddenly become septic without--if I
21           had peritonitis--without having severe pain for
22           several hours that would be ten out of ten or eight
23           out of ten.  It--it would be the kind of pain that
24           I could not ignore.
0140
 1   Q       You read over Dr. Bochicchio's deposition, correct?
 2   A       I did.
 3   Q       And you see where he indicates that a patient can
 4           become septic following a--a colonic perforation
 5           within hours, in a short period of time?
 6   A       Well, I've never seen it, so I--I don't know if
 7           that's true or not.
 8   Q       But--so--
 9   A       I've never seen it.  I mean, anything is possible,
10           so I--I wouldn't call him a liar.  And maybe he's
11           seen such a case, but I never have.  I've seen
12           plenty of peritonitises.  I tend to see them before
13           he does 'cause he's a surgeon.  So I have to
14           diagnose them and call them in.  So I--I've never
15           seen somebody develop peritonitis and within a
16           couple hours become septic. 
17   Q       What about abdominal compartment syndrome?  What is
18           that? 
19   A       Well, that's sort of a syndrome where--it just
20           means that if you're in a fixed space, so you've
21           got a certain amount of space in the abdomen, and
22           it fills up with a large amount of fluid, that it
23           can start compressing--all the organs in the
24           abdomen can compress the blood flow going back to
0141
 1           the heart, and you start getting, you know,
 2           hypotension.  You can get kidney failure.  
 3                     The only time I've seen that is in
 4           patients in intensive care units.  Usually          
 5           they're--have been very ill for a few days.  I know
 6           it's been described in--rarely in people with
 7           severe ascites, but, you know, I've seen some
 8           pretty bad ascites being a gastroenterologist and
 9           have never seen that or--or maybe seen once, but we
10           just tap the ascites.  
11                     So it's something that doesn't develop,
12           you know, in a--in a couple of hours unless of
13           course you rupture your--let's say a major vessel
14           like the abdominal aorta.  I think it's been
15           described in--in that situation when your whole
16           abdomen fills up with a huge amount of blood.
17                     So I--I think I disagree with him.  I--I
18           don't think--certainly you could get that if he
19           wasn't doing well and he was sitting in a hospital
20           for several days and his bowels weren't moving and
21           he was accumulating all kinds of puss and exudate
22           in his abdomen.  
23                     It--it could be an issue, but I--I        
24           don't--I've never seen it or heard of it as an
0142
 1           acute event with a perforation, nor--nor do I
 2           remember it being described as an acute event in
 3           the GI literature from a perforation, but I guess
 4           anything's possible.
 5   Q       Doctor, abdominal distension may be the only sign--
 6           or I guess sign in an early perforation, correct?
 7   A       Yeah, I think it would be significant.  For it to
 8           be clinically significant--I mean, you're talking
 9           about significant pain and distension because you'd
10           get really uncomfortable.  
11   Q       Can you have abdominal distension as an early sign
12           of perforation prior to the onset of pain?
13                     MR. POLITO:  Objection as to form.  
14   A       Well, I guess it could be a very early sign, yeah,
15           but in that case, the patient would just have a
16           little distension.  But there would be, you know,
17           no hemodynamic or other consequence if he wasn't
18           having pain.  If the distension got worse, he would
19           be getting increasing amounts of pain, which would
20           become quite severe and unbearable.  So, I mean,
21           it's a process. 
22   Q       Okay.  So I guess what--and that's exactly what I
23           was getting at.  A patient can start with abdominal
24           distension, which from a subjective standpoint
0143
 1           would be bloating, and that can then in the process
 2           of--of that--if it's associated with a perforation,
 3           then pain would develop at some period of time
 4           after the distension, which would probably become
 5           severe in description.  Is that a fair statement? 
 6                     MR. POLITO:  Objection as to form.
 7   A       Well, I think even Dr. Bochicchio mentioned that,
 8           you know, if somebody has mild distension, that
 9           they--you know, they don't necessarily have to have
10           a perforation.  So I think in his deposition, it
11           all had to do with timing of when this depo--when
12           this distension occurred and--but I think he would
13           agree that with a perforation, you'd have severe
14           distension which would cause severe pain.  So the
15           hallmark of perforation is severe pain.
16   Q       From your reading of the literature, Doctor, can we
17           agree that most deaths following colonoscopic
18           perforations occur after inappropriate management
19           of the suspected perforation? 
20                     MR. POLITO:  Objection. 
21   A       I don't agree.  I--I don't agree.
22   Q       Okay.  Is it difficult to evaluate a patient's
23           clinical signs and symptoms that may be associated
24           with a colonic perforation over the phone?
0144
 1                     MR. POLITO:  Objection.  Go ahead,
 2           Doctor. 
 3   A       Well, I think you can suspect it.  If a patient has
 4           severe abdominal pain, I don't think it's
 5           difficult.  Doesn't mean he has of course a
 6           perforation.  I mean, patients have pain for a
 7           variety of reasons and so--and patients', you know,
 8           descriptions of pain are different.
 9                     But if a patient has significant pain,
10           doesn't mean that they've perforated.  It just
11           means that they should be evaluated to see if they
12           have perforated.  You know, everybody we send down
13           to emergency room with severe pain after a
14           colonoscopy does not have a perforation. 
15   Q       Doctor, we talked a moment ago about vagovasal
16           [sic] response.  And if a patient has a vasovagal
17           response, can that, if you know, cause a patient to
18           develop a cardiac arrhythmia?
19   A       I--I really don't know.  I mean, I've seen plenty
20           of vasovagals in my day.  None of them sort of died
21           of it or developed a cardiac arrhythmia.  So you'd
22           have to ask a cardiologist what the literature is
23           on that.  I mean, I induce vasovagal reactions in a
24           lot of patients, and I don't--I don't treat it in--
0145
 1           (inaudible)--I can't really answer your question. 
 2   Q       Not a problem.
 3                     Your readings in the GI literature,
 4           Yamada and some of the others that we've talked
 5           about, are you aware of literature that indicates
 6           that first a colonic distension puts a patient at
 7           risk for a vasovagal cardiac effect?
 8                     MR. POLITO:  I'm sorry.  Could you repeat
 9           that? 
10                     MR. MISHKIND:  Sure.  I'm referring to
11           literature that--that the doctor has referenced,
12           including, but not limited to, Yamada's, whether or
13           not a colonic distension or abdominal distension
14           puts a patient at risk for a vasovagal cardiac
15           effect or a vasovagal response. 
16                     MR. POLITO:  Objection.  Go ahead. 
17   A       The only time I've seen that, as I said, is during
18           a colonoscopy so--particularly when my fellows
19           overdistend the abdomen or overtwist the colon. 
20           That's usually the cause of a vasovagal.  I'm just
21           trying to think if I've ever seen a patient--of
22           course we--I see patients who are distended after
23           surgeries and are--you know, have a ton of air in
24           their colon; they can't move it and for a variety
0146
 1           of reasons obstructed.  And I can't remember a
 2           vasovagal ever being an issue in these patients. 
 3           So I don't think it's common.
 4   Q       Well, I'm not suggesting it's common.  I'm just
 5           asking you whether or not it's reported in the
 6           literature to occur, whether it's common or
 7           infrequent.
 8   A       You know-- 
 9                     MR. POLITO:  Objection.  Go ahead, Doc.
10   A       --everything's reported in the literature.  I--I
11           can't--you know, I don't think anybody can question
12           every report.  And, you know, it's just if--you
13           know, in my experience and in remembering what's
14           presented in meetings and what I've read in the
15           past, I--I don't remember as vasovagal being
16           something that, you know, is--is a common issue, a
17           common morbidity or cause of mortality in people
18           who have a perforation. 
19   Q       Doctor, I want to ask you just a couple questions
20           relative to the opinions of Dr. Bochicchio and Dr.
21           Eisner, and then we'll be done.
22   A       Okay.  
23   Q       I'll--I'll summarize it, so if you need to refer to
24           the deposition, that's fine.  But if you recall,
0147
 1           Dr. Bochicchio's opinion was that Mr. Thompson died
 2           from respiratory arrest due to anoxia and if he had
 3           been admitted to the hospital, he would have had
 4           airway control and management; the per--perforation
 5           would have been assessed, and he would not have
 6           arrested.  Do you recall seeing that testimony? 
 7   A       Well, I--I vaguely recall it, but what you're
 8           saying doesn't make sense to me, so it seems like
 9           there's a--too many things added in there.  I think
10           what he was saying was that if he happened to be in
11           the hospital and he arrested, he could have been
12           intubated and things could have been done quicker
13           than waiting for an ambulance to show up at his
14           house.
15                     And I said before that certainly if--if
16           his arrest was visualized by the medical staff and
17           he wasn't sitting in a cubicle alone, that, you
18           know, things would have been done quicker.  So he--
19           he agreed that he had a cardiopulmonary arrest.  If
20           he happened to have been in hospital, I think we
21           all agree that I think he'd have a better chance of
22           survival.  Whether he would have survived or not, I
23           really don't know.  And so that's all I can say.  
24                     I mean, it seems like the kind of thing
0148
 1           that any layman would say "Well, if I had a heart
 2           attack in the hospital, I'd have a better chance of
 3           survival than if I was at home."  I'm sure there's
 4           studies on that by the cardiologist so--
 5   Q       Dr. Bochicchio also believes that Mr. Thompson
 6           developed SIRS.  Do you have an opinion on that? 
 7   A       Well, I--I again don't think that he developed
 8           SIRS.  I don't think he--he was, you know, septic. 
 9           I don't think there was enough time to develop
10           SIRS.  He could have developed it in a few days,
11           but I don't think that's what led to his
12           cardiopulmonary arrest at home.  I don't think it
13           was SIRS.
14   Q       Do you see any evidence that--at home that Mr.
15           Thompson suffered a seizure?
16   A       Well, nobody witnessed what happened because the
17           only person with him was his wife, and she was in
18           another room.  She said she left him; he was fine;
19           he was lying around and sleepy and in bed watching
20           TV.  And the next thing she knew--she was in
21           another room--she heard some gurgling.  And she
22           went in there.  And sounded like he had arrested. 
23           She said it looked like he was breathing.  But, you
24           know, that's--that's all I can say.
0149
 1                     So what happened in those few minutes
 2           that she was not there is--is unclear.  That's why
 3           I speculated before that he could have had an
 4           arrhythmia; he could have had a seizure.  You know,
 5           I'm not--I'm not sure what happened, but obviously
 6           something happened.  
 7                     In my experience, patients who've had a
 8           perforation in the abdomen would not be lying in
 9           bed, dozing on and off, watching TV.  That
10           perforation would be knocking on their door telling
11           them "I got severe pain."  They'd be rolling around
12           in bed.  They would want something for pain, like,
13           now.  
14                     So I don't know how he went from sitting,
15           watching TV in fifteen minutes to cardiac arrest--
16           or cardiopulmonary arrest or--I have no idea.  I--I
17           just--it--it's not--
18   Q       After reviewing Dr. Eisner's--you have his report
19           and his deposition? 
20   A       I got his report here somewhere.  (Looks through
21           paperwritings.)  Yeah, I have his report, and his
22           deposition is somewhere here.  Are you going to
23           refer me to a page?
24   Q       Well, actually what I was hoping to do was to just
0150
 1           give you an opportunity to tell me whether there
 2           are any areas that you take issue with or disagree
 3           with in terms of Dr. Eisner's opinions.
 4                     MR. POLITO:  I--well, objection.  
 5   A       Well, I disagree with Dr. Eisner's opinion.  He
 6           says "Within a reasonable degree of medical
 7           probability, the failure of Dr. Melamud to advise
 8           Mr. Thompson to go to the emergency room when he
 9           became aware of his sharp abdominal pain"--so Dr.
10           Eisner obviously didn't read Dr. Melamud's
11           deposition.  And Dr. Melamud said he didn't have--
12           or tell him he had sharp abdominal pain.
13                     So there's a disagreement there.  So the
14           sentence is--doesn't make any sense to me.  He
15           ignores Dr. Melamud entirely and assumes that he's
16           lying.
17                     Additionally, he says "Advising the use
18           of an enema with a sharp abdominal pain"--and
19           again, he says there's sharp abdominal pain, so he
20           totally ignores Dr. Melamud's testimony--"was a
21           deviation from the standard of care."  So I think
22           we all agreed that that was true except that Dr.
23           Melamud says that was not the situation.  So it
24           sort of doesn't really apply to this case, although
0151
 1           he implies it does. 
 2                     And then he says "More likely than not,
 3           had Mr. Thompson had arrived in the emergency room
 4           hemoglonomically [sic] stable instead of cardiac
 5           arrest, he would have survived."  And I think--you
 6           know, I think there's a good chance of that,
 7           although I--I can't be entirely sure, as I said,
 8           'cause I don't know what caused the cardiopulmonary
 9           arrest.
10                     But I--sort of that last statement is
11           sort of--I guess--I guess I would have to agree
12           that if he was sitting in an emergency room with
13           doctors and nurses around him and he suddenly
14           arrested, his chances of survival would be greater. 
15           But it's unclear to me what caused his arrest.  And
16           reading Dr. Eisner's statement, he doesn't state in
17           that line what he thinks caused the cardiopulmonary
18           arrest.
19                     THE VIDEOGRAPHER:  Mr. Mishkind--
20                     MR. MISHKIND:  Okay.  
21                     THE VIDEOGRAPHER:  --can we take a brief
22           pause?
23                     MR. MISHKIND:  You're getting close on
24           time?
0152
 1                     THE VIDEOGRAPHER:  Yes, sir.  
 2   Q       Doctor, were you done with your answer?
 3   A       Yeah, I think so.  
 4   Q       Okay.
 5                     MR. MISHKIND:  Let me--what do you have,
 6           about three or four minutes? 
 7                     THE VIDEOGRAPHER:  We're probably down to
 8           about one or two minutes.
 9                     MR. MISHKIND:  Okay.  I'm very, very
10           close to being done, but depending upon how long
11           the answer is--why don't you go ahead and change
12           just to play safe.
13                     THE VIDEOGRAPHER:  Okay.  We're off the
14           record at twelve-thirty-four P.M.
15                     (DISCUSSION OFF RECORD)
16                     THE VIDEOGRAPHER:  We're back on the
17           record at twelve-thirty-four P.M.
18   Q       Doctor, I just wanted to make sure that I had not
19           cut you off and given you an opportunity to--to
20           comment on Dr. Eisner's opinions and whether you
21           had finished.
22   A       Well, I basically disagree with his opinions.  And
23           I don't think he considers at all Dr. Melamud's
24           testimony.  So I think his opinions are not valid
0153
 1           since he doesn't indicate that--that there's any
 2           disagreement on this issue.
 3   Q       Well, Doctor, you don't indicate that there's any
 4           disagreement on the issue in your report relative
 5           to the history that Mr. Thompson gave to Dr.
 6           Melamud, do you? 
 7                     MR. POLITO:  Well, note the way it's
 8           characterized.  Objection.  Go ahead, Doctor. 
 9   A       I state quite clearly that Dr. Melamud ascertained
10           he had no other complaints, such as nausea,
11           vomiting, severe pain, et cetera.  So I state who
12           came up with my theory.
13   Q       Okay.  
14   A       A professional always references where he gets his
15           data.  Dr. Eisner did not recog--reference that he
16           is referring to Ms. Thompson, and so that's why I
17           don't characterize it as being either professional
18           or correct. 
19   Q       Well, Doctor, so that the record is entirely
20           professional and correct, in your report and the
21           opinions that you expressed in your report, you do
22           not consider from the history Ms. Thompson's
23           testimony that her husband had severe pain, had
24           abdominal distension and had an inability to pass
0154
 1           gas and that all of those symptoms were conveyed by
 2           her husband in her presence during the telephone
 3           call; you relied upon Dr. Melamud's--
 4   A       Right. 
 5   Q       --testimony and gave his testimony the benefit of
 6           the doubt, correct? 
 7   A       That's correct.  And I stated that in my statement.
 8   Q       And--
 9   A       Dr. Eisner did not.
10   Q       Doctor, let me finish, please.
11                     If Ms. Thompson is correct, in your
12           opinion, you didn't give her the benefit of the
13           doubt in terms of taking her opinion or her
14           recollection into account, correct? 
15   A       That's correct. 
16   Q       And if Ms. Thompson is correct and Dr. Melamud is
17           incorrect, then Dr. Melamud violated the standard
18           of care in this case, true?
19                     MR. POLITO:  We've already an--
20   A       We've gone--we--we're spending three and a half
21           hours on this, and we've gone over this point
22           several times.  You've questioned me--
23   Q       Doctor, the only reason I'm raising it, because
24           you're suggesting that Dr. Eisner is wrong--
0155
 1                     MR. POLITO:  No--
 2   Q       --and--
 3                     MR. MISHKIND:  Let me finish, please. 
 4           You can object in a moment.
 5   Q       But in fairness, you don't give Ms. Thompson's
 6           account of what she heard her husband say and what
 7           she witnessed with regard to her husband any
 8           validity as it relates to the indications to send
 9           Mr. Thompson to the hospital, do you? 
10                     MR. POLITO:  No.  Howard, you guys are
11           talking apples and oranges.  He said at least in
12           his report, he referred to Dr. Melamud.  He said in
13           Dr. Eisner's report, he doesn't refer to who said
14           what.  
15                     MR. MISHKIND:  Okay.  
16                     MR. POLITO:  He's not being critical of
17           Dr. Eisner; he's just saying that at least he said
18           where he got it from. 
19   A       I--I started this conversation-- 
20                     MR. POLITO:  Yeah.
21   A       --by saying the professional thing would have been
22           to reference where he got his information from. 
23                     MR. POLITO:  That's all he said, Howard.
24                     MR. MISHKIND:  Okay.  
0156
 1   A       That's all I said.  And I said what I did was I
 2           referenced where that information came from. 
 3   Q       Okay.  And just to tie this up and be done with it,
 4           you gave--regardless of--of the source that Dr.
 5           Eisner had for referencing the severe pain, we can
 6           agree that the severe pain had to have come from
 7           Ms. Thompson's deposition, correct? 
 8   A       I beg your pardon?
 9   Q       Dr. Eisner's reference of severe pain had to have
10           come from Ms. Thompson's deposition, correct? 
11   A       I don't know that reading this deposition.  I
12           assume that Dr. Eisner had access to Dr. Melamud's
13           deposition.  And so I--if you give this to an
14           uncritical person, he would just have to assume
15           that this is what Dr. Melamud did, and there's no
16           reference to who said what.  
17                     I'm just saying that it--I--I would have
18           said that--if I had written this, if I were Dr.
19           Melamud, I would have said that based on Ms.
20           Thompson's testimony, et cetera, et cetera.  And
21           that's what I did.  I said based on what Dr.
22           Melamud had said, okay?
23   Q       Okay.  The only--
24   A       There's-- 
0157
 1   Q       Doctor, let me point--and I really want to end the
 2           deposition.  The only point I'm making is in terms
 3           of the history of symptoms, you gave Dr. Melamud
 4           the benefit of the doubt and accepted what he said
 5           the symptoms were and did not take into account
 6           what Ms. Thompson said her husband's symptoms were
 7           at the time that that telephone call took place,
 8           correct? 
 9                     MR. POLITO:  Objection.  
10   A       Well, I didn't write--want to write a book.  I have
11           my reasons for that, and I've stated to them
12           through you through the deposition that--I've
13           stated to you that I--I've never seen a patient
14           with an acute peritonitis or acute per--perforation
15           that has severe abdominal pain sitting around
16           watching TV, dozing on and off.  I just--I just--   
17           I--I can't understand that kind of situation so--
18   Q       So you discounted Ms. Thompson's testimony as to
19           what she observed during the day, what she heard at
20           eight o'clock and what her husband's symptoms were
21           thereafter? 
22   A       I dis--
23                     MR. POLITO:  Objection. 
24   A       --discounted her memory of them, yes.
0158
 1   Q       Okay.  
 2   A       And I referenced the person whose information I was
 3           basing my opinion on so it would be clear to
 4           everybody where I got my information. 
 5   Q       It's loud and clear.  I--I fully understand where
 6           you got the information and whose information
 7           you're relying upon.
 8                     Are there any other opinions, Doctor,
 9           that you hold in this case relative to the standard
10           of care that we have not exhausted?
11                     MR. POLITO:  Objection.  Go ahead,
12           Doctor. 
13   A       Well, I think I stated that Dr. Melamud acted
14           within the standard of care with the information
15           that he stated that he had.
16   Q       And, Doctor, rather than repeating it, I'm only
17           asking you have I given you full opportunity to
18           explain the basis or bases for your opinion that
19           you believe Dr. Melamud met the standard of care? 
20                     MR. POLITO:  Well, objection.  Go ahead,
21           Doctor. 
22   A       Yes, I guess so.  I can't think of anything else at
23           this point.
24   Q       And in terms of causation, you've already explained
0159
 1           to me you don't believe he died of complications of
 2           the colonos--colonoscopy perforation and that he
 3           would have died, in your opinion, even if he didn't
 4           have a--a perforation, and you have three
 5           possibilities, but you're not sure which is more
 6           likely to have been the cause of his arrest?
 7                     MR. POLITO:  Well, I'm going to object. 
 8           His testimony is what it is, Howard.  You're trying
 9           to summarize a three-and-a-half-hour deposition. 
10           His--
11   Q       Let me rephrase it, Doctor.  
12                     MR. POLITO:  Okay.  
13   Q       Have you--have you been given an opportunity
14           adequately to explain your causation opinions,
15           whether they arise to a reasonable degree of
16           medical probability or otherwise?
17   A       Within a reasonable degree of medical probability,
18           I feel that the patient did not die because of the
19           perforation but he died because of a--either a
20           seizure or cardiopulmonary event, a stroke
21           possibly.  And I would leave that to forensic
22           experts, cardiologists, et cetera. 
23   Q       Okay.  And have I given you a reasonable
24           opportunity to explain the bases upon which you
0160
 1           have those causation opinions? 
 2   A       Yes.
 3   Q       Okay.  Have we now covered causation and standard-
 4           of-care opinions rather exhaustively? 
 5   A       I think so.  I don't know.
 6   Q       And--okay.  Doctor, have I--other than a couple
 7           times where I unintentionally cut you off, have I
 8           been fair to you during the course of this
 9           deposition? 
10   A       Yes.
11   Q       Okay.  Doctor, I thank you very much.  I have no
12           further questions for you.
13                     MR. POLITO:  Okay.  He'll want to read
14           it.
15                     MR. MISHKIND:  Okay.  
16                     MR. POLITO:  It's--before we go off,
17           it's, what, twelve-forty-two?  What time is it?
18                     MR. MISHKIND:  It is twelve-forty-five.
19                     MR. POLITO:  Twelve--
20                     MR. MISHKIND:  You'll send the bill
21           through Mr. Hupp, and I will take care of it
22           promptly.
23                     MR. POLITO:  Okay.  
24                     THE VIDEOGRAPHER:  We're off the record
0161
 1           at twelve-forty-four P.M.
 2                        (WITNESS EXCUSED)
 3                                                              
 4     (WHEREUPON, THE DEPOSITION WAS CONCLUDED AT 12:44 P.M.)
 5                                                              
0162
 1                                                         -162-
 2   INSTRUCTIONS TO WITNESS:
 3           Please read carefully the following Witness
 4   Certificates and then sign and date the appropriate
 5   certificate.  Please do NOT sign both of them!
 6   IF YOU MADE CORRECTIONS, SIGN CERTIFICATE (A):
 7                  CERTIFICATE  OF  WITNESS  (A)
 8           I,                                    , a witness
 9   in the above-entitled action, do hereby certify that I have
10   reviewed the transcript of my deposition and have attached
11   corrections to the same, along with the reason for each
12   correction.
13       Signed this          day of                    , 2008.
14   
                      (MARTIN H. POLESKI, M.D.)
15   -----------------------------------------------------------
     IF YOU DID NOT MAKE CORRECTIONS, SIGN CERTIFICATE (B):
16   
                    CERTIFICATE  OF  WITNESS  (B)
17   
             I,                                    , a witness
18   
     in the above-entitled action, do hereby certify that I have
19   
     reviewed the transcript of my deposition and have made no
20   
     corrections to the transcription.
21   
         Signed this          day of                    , 2008.
22   
23                    (MARTIN H. POLESKI, M.D.)
24   bas: (10-03-08)
0163
 1   STATE OF NORTH CAROLINA                                -163-
     COUNTY OF WAKE
 2   
                        C E R T I F I C A T E
 3   
             I, Brandy Anderson Sadler, a Notary Public in and
 4   
     for the State of North Carolina, duly commissioned and
 5   
     authorized to administer oaths and to take and certify
 6   
     depositions, do hereby certify that on October 3rd, 2008,
 7   
     MARTIN H. POLESKI, M.D., being by me duly sworn to tell the
 8   
     truth, thereupon testified as above set forth as found in
 9   
     the preceding 162 pages, his examination being reported by
10   
     me verbatim and then reduced to typewritten form under my
11   
     direct supervision; that the foregoing is a true and
12   
     correct transcript of said proceedings to the best of my
13   
     ability and understanding; that I am not related to any of
14   
     the parties to this action; that I am not interested in the
15   
     outcome of this case; that I am not of counsel nor in the
16   
     employ of any of the parties to this action, and that the
17   
     signature of the witness was not waived.
18   
             IN WITNESS WHEREOF, I have hereto set my hand, this
19   
     the 21st day of October 2008.
20   
21   
22                          Notary Public
                            Notary No. 20010500227
23   
     Brandy Anderson Sadler
24   PACE REPORTING SERVICE
     P. O. Box 252
25   Cary, North Carolina  27512
     Telephone:  919/859-0000 - Raleigh
26               910/433-2926 - Fayetteville
                 910/790-5599 - Wilmington
0164
 1                   IN THE COURT OF COMMON PLEAS
                       CUYAHOGA COUNTY, OHIO   
 2   
 3   C. JEAN, THOMPSON, et cet,  )
                                 )     ADDENDUM TO DEPOSITION
 4                 Plaintiff,    )             
 5                               )              OF
 6             vs.               )             
 7                               )         M A R T I N  H. 
 8   MARK MELAMUD, M.D., et al,  )  
 9                               )       P O L E S K I, M.D.
10                 Defendants.   )
11   -----------------------------
12   
13   PAGE   LINE              SHOULD READ    REASON FOR CHANGE
14   
15   
16   
17   
18   Signed this the        day of                , 2008.
19   
20   
21   
22                                 (MARTIN H. POLESKI, M.D.)
23   
24   bas:  (10-03-08)
0165
 1   Poleski                                                 -i-
 2   
 3   
 4                E X A M I N A T I O N   I N D E X
 5   
 6   Examination               By Whom                 Page No.
 7   
 8   Direct                    Mishkind                       5
0166
 1   Poleski                                                -ii-
 2   
                      E X H I B I T   I N D E X
 3   
     Exhibit No.             Description             Page Marked
 4   
     Plaintiff's 1           Report/Letter by
 5                           Martin Poleski, M.D.             3
 6   Plaintiff's 2           10-02-08 Letter                  3
 7   
 8   Plaintiff's 3           10-02-08 Letter                  3
 9   
10   Plaintiff's 4           10-02-08 E-mail                  3
11   
12   Plaintiff's 5           Curriculum Vitae               161
13   
14   Plaintiff's 6           01-22-08 Letter                 60
15   
16   Plaintiff's 7           03-18-08 Letter                 60
17   
18   Plaintiff's 8           06-20-08 Letter                 60
19   
20   Plaintiff's 9           08-01-08 Letter                 60
21   
22   Plaintiff's 10          10-01-08 Letter                 60
23   
24   Plaintiff's 11          Handwritten Notes               66