0001 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 _________________________________ 4 C. JEAN THOMPSON, etc., 5 Plaintiff, 6 vs. File No. CV-07-622712 Hon. Joan Synenberg 7 MARK MELAMUD, M.D., et al., 8 Defendants. 9 _________________________________/ 10 DEPOSITION OF ANTHONY SENAGORE, M.D., 11 taken on behalf of Plaintiff, on Monday, September 29, 2008, 12 before DARLENE D. FULLER, CSR/RPR/CM/CRR and Notary Public, 13 at 25 Michigan Avenue, Northeast, Grand Rapids, Michigan, at 14 1:00 p.m. 15 APPEARANCES: 16 FOR THE PLAINTIFF (via telephone): 17 BECKER & MISHKIND CO., L.P.A. Skylight Office Tower 18 1660 West 2nd Street, Suite #660 Cleveland, OH 44113 19 (216) 241-2600 BY: Howard D. Mishkind 20 FOR THE DEFENDANTS: 21 BONEZZI, SWITZER, MURPHY, POLITO & HUPP 22 CO., L.P.A. 1300 East Ninth Street, Suite 1950 23 Cleveland, OH 44114 BY: Steven J. Hupp 24 ALSO PRESENT: Jeff Lysne, Videographer (616) 456-0745 25 0002 1 I N D E X 2 3 WITNESS EXAMINATION PAGE 4 SENAGORE, ANTHONY, M.D. 5 BY MR. MISHKIND 4 6 7 8 EXHIBITS 9 NUMBER DESCRIPTIONS PAGE 10 #1 Senagore curriculum vitae 17 11 #2 2-9-08 Senagore report 19 12 13 14 15 16 17 18 19 20 21 22 23 24 (Exhibits attached to transcript.) 25 0003 1 2 3 Grand Rapids, Michigan 4 Monday, September 29, 2008 5 1:00 p.m. 6 * * * 7 VIDEO TECH: We're on the record. Today's date is 8 Monday, September 29th, 2008. We are at 25 Michigan 9 Northeast; Grand Rapids, Michigan. This is the videotaped 10 deposition of Dr. Anthony Senagore, taken in the matter of 11 Thompson versus Dr. Melamud. 12 Will all counsel please identify themselves and 13 would the court reporter then swear the witness. 14 MR. MISHKIND: My name is Howard Mishkind, and I am 15 the attorney for the Estate of Robert Thompson. 16 MR. HUPP: Steve Hupp on behalf of Dr. Melamud. 17 REPORTER: Doctor, would you raise your right hand, 18 please. 19 ANTHONY SENAGORE, M.D. 20 having been duly sworn by the court reporter to tell the 21 truth, the whole truth, and nothing but the truth, testified 22 as follows: 23 THE WITNESS: I do. 24 /// 25 /// 0004 1 DIRECT EXAMINATION 2 BY MR. MISHKIND: 3 Q. Doctor, good afternoon. 4 A. Good afternoon. 5 Q. Would you please state your name for the record. 6 A. Anthony Senagore. 7 Q. Dr. Senagore, obviously I am participating by phone and 8 hopefully this will not be a problem in terms of my questions 9 being clear and understandable. However, if for some reason 10 my questions get cut off or I'm not loud enough in terms of 11 getting the question to you, please tell me that you didn't 12 hear it and I will restate the question. 13 Also, if you would, please, because we're doing 14 this by phone, I will wait until you're done answering the 15 question. I'd ask you to do the same courtesy for me in 16 terms of waiting until my question has been completed so that 17 we don't overlap each other. 18 A. Yes, sir. 19 Q. Great. Doctor, tell me, if you would, please, your 20 professional address. 21 A. Office address is 25 Michigan Avenue Northeast, Mail Code 22 038; Grand Rapids, Michigan, 49503. 23 Q. Where is that address located? 24 A. In Grand Rapids. 25 Q. That was probably a poorly worded question. Is that a 0005 1 hospital or a business? What exactly is that address? 2 A. It's a good question. I'm not actually sure who owns the 3 building. It's -- we -- the hospital system leases the 4 floor. 5 Q. Which hospital system is this? 6 A. Spectrum Health. 7 Q. Great. Doctor, you've been identified as an expert in the 8 Thompson versus Melamud case, and I'm going to be taking your 9 deposition this afternoon to determine what opinions you have 10 as it relates to this case when we go to trial in December. 11 You understand that I'm going to be relying upon the answers 12 that you give today. 13 A. I do, yes. 14 Q. Are you still vice-president of research and education for 15 Spectrum? 16 A. Correct. 17 Q. Am I correct that you are a surgeon? 18 A. Correct. 19 Q. Is your area of specialization colorectal surgery? 20 A. I'm board certified in general surgery as well as colon and 21 rectal surgery. 22 Q. Would you tell me how much time you spend in the operating 23 room? How much of your professional time do you spend 24 operating? 25 A. Actually operating? 0006 1 Q. Yes. 2 A. Probably averages a day a week. 3 Q. And has that pretty much been the case since you became 4 vice-president of research and education for Spectrum? 5 A. Correct, been steadily getting busier since I've been in 6 Grand Rapids. 7 Q. The amount of time you spend in the active clinical practice 8 of medicine, has it changed at all over the last year or so? 9 A. No. 10 Q. What percentage of your professional time do you spend in the 11 active clinical practice of medicine? 12 A. Probably 50 to 60 percent, between clinical practice and 13 teaching. 14 Q. What percentage of your professional time is devoted to 15 administrative matters at Spectrum? 16 A. About 40 percent, then, I guess. 40, 45. 17 Q. And has that changed at all in the last year? 18 A. Probably a little more of a shift towards clinical from 19 administrative time. 20 Q. When did that shift take place? 21 A. Just been slowly. It's a private practice community, not an 22 academic practice, so it takes time to rebuild referral 23 lines. 24 Q. A little bit less than a year ago, you had indicated in sworn 25 testimony that you were spending 65 percent of your time in 0007 1 administrative matters and 35 percent in the active clinical 2 practice of medicine. I don't know if you are aware of that 3 or not. 4 A. No, I guess I wasn't. I don't -- I perceive I'm doing a 5 little more clinical than I was, but I don't think it was 6 ever that little. 7 Q. So if I said to you that you previously testified in October 8 of '07 that you were -- your clinical practice was 35 percent 9 of your professional time, and your administrative time was 10 65 percent, that would not be consistent with your 11 recollection? 12 A. No, I've -- if I said it, maybe I misunderstood the way the 13 question was phrased. 14 Q. All right. In any event, we can visit that at another point, 15 but currently you said -- when I asked you about your 16 clinical practice, 50 percent -- I think you may have said 50 17 to 60 percent is in clinical practice and in teaching. 18 A. Yeah. That's correct. 19 Q. And one day a week you are -- you do surgery? 20 A. That would be fair, yes. 21 Q. How many hours -- 22 A. Depends on the case. I mean, if I can help clear this up for 23 you. A full-time member of the practice usually has four 24 half-day clinics, and I typically have two. They typically 25 have two endoscopy sessions, I have one, and I take 0008 1 50 percent draw on call. So the surgery is whatever comes 2 out of the practice, so it could be variable, week by week, 3 based on the practice. 4 Q. When I asked you a moment ago in terms of your professional 5 time, you said 50 to 60 percent. How much of that is spent 6 teaching? 7 A. Probably 7 to 10 percent, I guess. 8 Q. I'm sorry, sir? 9 A. 7 to 10, I guess. 10 Q. Where do you teach? 11 A. On the wards, in the operating theater, in lectures. 12 Q. Tell me what your administrative responsibilities consist of. 13 A. I'm in charge of the research department, so that includes 14 grant submission, grants management, compliance issues, the 15 mechanics behind the systems research department. 16 Q. How many hours a week are you spending doing those kind of 17 activities? 18 A. It would be about 40 percent, so, you know, 4 hours a day or 19 so, I guess. 20 Q. What hospitals do you have privileges at? 21 A. It's Butterworth Hospital, Blodgett Hospital, St. Mary's 22 Hospital, and Metropolitan Hospital. 23 Q. Where do you do the majority of your surgical cases? 24 A. At Blodgett. 25 Q. You came from the University of Toledo or medical college, 0009 1 whatever it was called, about -- I'm sorry, tell me, when did 2 you leave Toledo to come to Grand Rapids? 3 A. I think it was November, 2006. 4 Q. Doctor, are you board certified in internal medicine? 5 A. No. 6 Q. Are you board certified in gastroenterology? 7 A. No. 8 Q. Have you ever practiced as a gastroenterologist? 9 A. No. 10 Q. Do you hold yourself out as an expert in the area of 11 gastroenterology? 12 A. Well, I guess it depends how you define that. I mean, 13 surgical gastroenterology, not medical. 14 Q. Can we agree that your training as a surgeon and as a 15 colorectal surgeon is different than the training for a 16 gastroenterologist? 17 A. I think that would be fair. 18 Q. Have you ever practiced at any time since residency as a 19 general gastroenterologist? 20 A. No. 21 Q. Have you published, Doctor, anything that would relate to the 22 subject of complications following a diagnostic colonoscopy? 23 A. I don't believe I have, no. 24 Q. What percentage of your practice currently is devoted to 25 endoscopy? 0010 1 A. Probably about 40 percent. 2 Q. And those are surgical endoscopies? 3 A. I guess I'm not sure of the distinction. They are 4 therapeutic, diagnostic, any indication for colonoscopy. 5 Q. And you said 40 percent of your -- of your practice is doing 6 endoscopies? 7 A. I think that would be a fair number, yes. 8 Q. Tell me what else you do as a -- as a surgeon in terms of 9 areas of interest. 10 A. Anal rectal surgery, and then colectomy, primarily. Both 11 laparoscopic and open. 12 Q. Now, do you perform diagnostic colonoscopies in your 13 practice? 14 A. Yes. 15 Q. How would you differentiate your practice in terms of a 16 patient that is referred for a diagnostic colonoscopy to you 17 as compared to a gastroenterologist? 18 A. There would be very little difference. 19 Q. How many diagnostic and therapeutic colonoscopies do you 20 perform a year? 21 A. In recent years, I probably average about five to six a week. 22 So over 40 weeks, about 200 a year, maybe. 23 Q. And of the colonoscopies that you perform, Doctor, are they 24 more diagnostic or more therapeutic? 25 A. More diagnostic. 0011 1 Q. In terms of the performance of colonoscopies, have you -- has 2 the number of 5 to 6 per week, has that increased or 3 decreased over the last three or four years? 4 A. Over the last three or four years, it's less. But over the 5 last year, year and a half, it's about the same. 6 Q. Doctor, I want to ask you a couple questions about your 7 experience as a witness at this point. You've had your 8 deposition taken before; true? 9 A. I have. Yes. 10 Q. When was the last time your deposition was taken, sir? 11 A. Good question. Probably the last six or eight weeks. 12 Q. Do you know when you're scheduled to give your next 13 deposition? 14 A. I don't think I have any scheduled. 15 Q. What was the nature of that case that you gave deposition 16 testimony in six to eight weeks ago? 17 A. I think that one was related to an anastomotic leak. 18 Q. Where was the leak located? 19 A. It was a colorectal anastomosis. 20 Q. Were you serving as an expert in that case? 21 A. Yes. 22 Q. Who were you serving as an expert for? The patient or the 23 physician? 24 A. In that case, for the physician, defense. 25 Q. Where is that case -- where did the anastomotic leak take 0012 1 place? 2 A. In the colon, you mean? 3 Q. I'm sorry, a poorly worded question. What hospital or state? 4 A. I don't recall the hospital. It was in Kentucky. 5 Q. Do you recall the name? I'm sure you do, the name of the 6 attorney that you're working for in that case? 7 A. No. I'm sorry, I don't. I would have to look it up. 8 Q. Do you recall the name of the physician? 9 A. No. 10 Q. The name of the patient? 11 A. No, sir. 12 Q. Doctor, how many times have you been deposed in a medical 13 negligence case where your care of a patient was at issue, 14 other than as an expert witness? In other words, either 15 where you were named or where you were an employee, for 16 example, at the Cleveland Clinic, where you may not have been 17 named, but your care was an issue? 18 A. Where I was deposed? 19 Q. Yes. 20 A. I think only once. 21 Q. When you were at the Cleveland Clinic, you were deposed on 22 one occasion in connection with a case where your care of a 23 patient was an issue? 24 A. I was a provider in the case, yes. 25 Q. And that was one time? 0013 1 A. I believe. That's all I can recall. 2 Q. Do you recall the name of that patient? 3 A. No, to be honest. 4 Q. Have you ever been named as a defendant where your name was 5 actually included in a lawsuit? 6 A. There was a case filed in '95, I believe. And that was 7 dismissed. And then there was a case that was dismissed in 8 '05, maybe. 9 Q. Those were the only occasions? 10 A. That I can recall, yes. 11 Q. The '05 case was when you were at the Cleveland Clinic? 12 A. It was -- yeah, the case occurred during my employment there, 13 yes. 14 Q. What about the previous case, were you also at the Clinic? 15 A. No, that was -- that was -- I think it was -- I was still 16 with the Ferguson Clinic at that time. 17 Q. So your testimony would be that while you were at the 18 Cleveland Clinic, as an employee, you were deposed on one 19 occasion where one of your patients had brought a claim, and 20 your care was the subject of that particular claim? 21 A. I think there were multiple parts to the complaint, but, yes, 22 I was part of that. 23 Q. Have you ever been to trial in a case where either you were 24 an employee of the clinic or you were an employee of another 25 institution where your care was drawn into question? 0014 1 A. Not that I can recall, no. 2 Q. Are you currently a defendant in any medical negligence 3 cases? 4 A. Not that I'm aware of, no. 5 Q. You have been deposed as an expert witness; correct? 6 A. Yes. 7 Q. How many times have you -- and -- strike that. Most of the 8 time when you've given testimony in depositions like this, 9 either in person or video-conferenced, most of the time 10 you've been giving testimony as an expert witness; is that a 11 fair statement? 12 A. That's true, yes. 13 Q. How many times have you testified or been deposed, I should 14 say, as an expert witness? 15 A. Oh, in my career? 16 Q. Yes, sir. 17 A. I guess it would be fair to say I've probably been deposed in 18 my career maybe 50 times. 19 Q. Have you ever testified as an expert in a case involving a 20 post colonoscopic or colonoscopy complication resulting in a 21 bowel perforation? 22 A. Not that I can recall, no. 23 Q. Of those 50 times, Doctor, that you have been deposed as an 24 expert, what percentage is for the defense? 25 A. Probably about 80 percent. 0015 1 Q. How many cases do you review per year as an expert witness? 2 A. I probably get asked to look at -- maybe six or seven cases a 3 year. And then probably five of those go as far as 4 deposition. 5 Q. Have you ever testified at trial on behalf of a patient or a 6 family bringing a claim against a physician? 7 A. I don't think so, no. 8 Q. Tell me how many cases you have reviewed at the request of 9 the Bonezzi, Switzer, Polito & Hupp law firm. 10 A. I think a total of three. 11 Q. This being the third or this being the fourth? 12 A. This being the third, I believe. 13 Q. How many cases have you previously reviewed at the request of 14 Attorney Hupp? 15 A. Actually, it would be -- this would be the fourth. And so 16 there have been three for Mr. Hupp and one for his partner. 17 Q. So you had the one case for Bill Bonezzi? 18 A. Correct. 19 Q. That was on behalf of Dr. Onuora -- 20 A. That sounds right. 21 Q. -- O-n-u-o-r-a? 22 A. Yes, I think that was the name. 23 Q. And then you had two previous cases for Mr. Hupp? 24 A. Right. And then one case that never went anywhere. 25 Q. Have you ever testified in federal court? 0016 1 A. No. 2 Q. Have you ever prepared a list of cases and jurisdictions on 3 those cases? 4 A. I have not. 5 Q. Doctor, have you ever participated in any companies or 6 services that provide physicians' names as potential expert 7 witnesses? 8 A. Not -- not that I recall, no. Nothing I signed up for. 9 Q. And I presume that you've never advertised your services as 10 an expert witness; is that a fair statement? 11 A. That's correct. 12 Q. Your medical license has never been suspended or revoked; has 13 it? 14 A. It has not. 15 Q. Have you ever applied for hospital privileges and been 16 denied? 17 A. No. 18 Q. Have your hospital privileges ever been suspended or revoked? 19 A. No. 20 Q. Tell me what you charge for case review. 21 A. $500 per hour for the medical records review. 22 Q. How much do you charge for depositions? 23 A. $600 per hour. 24 Q. And for your time for trial, what do you charge? 25 A. If it's a full day, $9,000 in court. 0017 1 Q. Half a day is still 4,500? 2 A. Yeah, correct. If I get back to work that day, yes. 3 Q. Doctor, I have a CV. Do you have a current CV? 4 A. I just gave one to Mr. Hupp. 5 Q. The copy that I have is dated November 15, 2005, and it's 31 6 pages. Could you tell me how many pages and what the 7 revision date is on the one you just handed to Steve? 8 A. I think the current one is 33 pages. It would have been 9 revised on 8-23-08. 10 MR. MISHKIND: Steve, do you mind if we mark that 11 as an exhibit? 12 THE WITNESS: That would be fine. 13 MR. HUPP: I would suggest that, yeah. 14 MR. MISHKIND: If the court reporter would mark 15 that as Plaintiff's Exhibit 1, that would be great. 16 (Deposition Exhibit 1 was marked.) 17 BY MR. MISHKIND: 18 Q. And for the record, Doctor, Plaintiff's Exhibit 1 is your 19 current and updated CV? 20 A. Correct. 21 Q. Now, you left the Cleveland Clinic Foundation when? 22 A. I think in 2005. 23 Q. And you left University of Toledo in 2006? 24 A. Correct. 25 Q. As I understand it, you came back to the Grand Rapids, 0018 1 Michigan, area because of family issues? 2 A. Correct. 3 Q. Do you have your report handy? 4 A. My what? I'm sorry. 5 Q. Your expert report. 6 A. Yes, I do. 7 Q. I have a report date -- I'm sorry? 8 A. I'm sorry, yes, I do. 9 Q. Okay. 10 MR. MISHKIND: And just as a check with the court 11 reporter or the videographer, are we doing okay with my 12 voice? 13 VIDEO TECH: Fine, yep. 14 THE WITNESS: Yep, they're happy. 15 MR. MISHKIND: Okay. 16 BY MR. MISHKIND: 17 Q. The report I have, Doctor, is dated February 9, 2008, and 18 it's two pages in length. Is that the same report you have? 19 A. Yes, sir. 20 Q. Have you prepared any drafts of this report? 21 A. No. 22 Q. This is the one and only report that you've written? 23 A. To my recollection, yes. 24 Q. And do you stand by the opinions that you have expressed in 25 your report? 0019 1 A. Yes. 2 MR. MISHKIND: If we could, if there is an extra 3 copy, if we could mark that as Plaintiff's Exhibit 2, I would 4 appreciate it. 5 (Deposition Exhibit 2 was marked.) 6 THE WITNESS: Okay, I gave it to the court 7 reporter. 8 BY MR. MISHKIND: 9 Q. Okay. And Plaintiff's Exhibit 2 again, Doctor, is your 10 2-page report that you authored and sent to Mr. Hupp back in 11 February of 2008? 12 A. Correct. 13 Q. Do you have with you today your file? 14 A. Yes. 15 Q. Now, in looking at your report, it says, "I've reviewed the 16 materials provided regarding this case." Can you tell me 17 what you reviewed prior to preparing the February 9, 2008, 18 report. 19 A. Sure. There's a report by a Dr. Bochicchio, a report by a 20 Dr. Eisner, looks like the coroner's report, and I can't find 21 the date on this, but it's the coroner's report on the 22 autopsy. It looks like April 16th, 2004. Several letters by 23 Dr. -- by -- from Mr. Hupp's office that just accompanied the 24 records. And I have a file of the actual medical records 25 from the colonoscopy and the hospital care. And then I have 0020 1 a transcript from -- is it Dr. Bochicchio? 2 MR. HUPP: Well, the question was before your 3 report, I think. 4 THE WITNESS: Oh, I -- do you want what I have for 5 today? Or -- I'm sorry. 6 BY MR. MISHKIND: 7 Q. No, Doctor, Steve was correct. Up until you mentioned the 8 deposition -- 9 A. Yeah. 10 Q. -- I think in all likelihood the items that you were 11 referencing were items that you had prior to your report in 12 February of '08. And I want to limit what you reviewed and 13 had available at the time that you prepared that report. And 14 then we'll talk about what additional information you've 15 reviewed. 16 A. Okay. I'm sorry, then I think that would be it. 17 Q. Now, I didn't hear you mention anything about Dr. Melamud's 18 deposition. 19 A. I think I had one from 2006, at that time. 20 Q. Did you read the -- there was a subsequent deposition taken 21 of Dr. Melamud. Did you read that deposition? 22 A. I did. But I can't remember if I had it for that review or 23 not. I can't honestly recall. I may or may not have. 24 Q. Do you have that with you today, both transcripts? 25 A. I have both transcripts today, yes. 0021 1 Q. What about Mrs. Thompson's deposition? 2 A. I don't recall having that, to be honest with you. 3 Q. That's not something that is in the material that you have 4 with you? 5 A. It's not in the pile. This would be everything that I have, 6 so I don't -- and I don't recall seeing that. 7 Q. Is it fair to say that -- I presume you brought everything 8 with you that you -- that you considered in this case. 9 A. Yes, sir. 10 Q. Nothing has been removed? 11 A. Not that I can recall, no. 12 Q. May I fairly conclude that you likely did not review and 13 consider Mrs. Thompson's deposition? 14 A. That would be a fair assumption, yes. 15 Q. Do you have any correspondence from Mr. Hupp, other than, 16 "Enclosed please find the following information..."? 17 A. No, it was just the letters that accompanied the records. 18 Q. Do you have any literature that you considered prior to 19 preparing your February 9, 2008, report? 20 A. No. 21 Q. Is there anything else that you can identify for me that you 22 reviewed before preparing this report, other than what you've 23 already identified on the record? 24 A. No. 25 Q. Now, you started then to say that you read over or received 0022 1 the reports of Dr. Bochicchio, and that is -- well, if the 2 court reporter has the spelling on that or no. 3 (Witness displaying document to Reporter.) 4 MR. MISHKIND: I'll wait until you've gotten the 5 spelling. 6 REPORTER: I did. Thank you very much. 7 MR. MISHKIND: You're quite welcome. 8 BY MR. MISHKIND: 9 Q. You've also -- have you received Dr. Eisner's deposition 10 transcript? 11 A. Yes. Deposition transcript? No, I don't believe so. 12 Q. So you've been provided Dr. Bochicchio's transcript, but have 13 not seen the transcript of Dr. Todd Eisner? 14 A. Correct. 15 Q. Have you seen any of the expert -- the reports of other 16 experts that have been retained by Mr. Hupp in this case? 17 A. Only the reports that I mentioned. 18 Q. So you haven't seen the report of a Dr. Wetli, W-e-t-l-i? 19 A. Correct. I don't have that in my packet. 20 Q. Do you know who Dr. Wetli is? 21 A. No, sir. 22 Q. Have you seen a report authored by Dr. Martin Poleski, 23 P-o-l-e-s-k-i? 24 A. I don't recall that name, no. 25 Q. I take it you don't know Dr. Poleski? 0023 1 A. No, I don't. 2 Q. Have you reviewed any literature since you prepared your 3 report? 4 A. No. 5 Q. Do you have any literature with you today? 6 A. I do not. 7 Q. Are you relying upon any literature to support any of the 8 opinions that you hold in this case? 9 A. Not specifically, no. 10 Q. Just looking at my Notice of Deposition to complete this area 11 of the deposition. Do you have any summaries or any 12 abstracts, other than what you've identified? 13 A. No. 14 Q. How about e-mails? 15 A. I don't believe so, no. 16 Q. Have you highlighted or tabbed any of the sections of the 17 records? 18 A. I have not. 19 Q. Have you highlighted or tabbed any of the sections of 20 deposition? 21 A. I have not. 22 Q. Do you have any notes? 23 A. No. 24 Q. When you prepared your -- when you reviewed the case, back in 25 February of '08, tell me how you went about preparing your 0024 1 report. 2 A. I usually just begin with the start of the medical records, 3 so in this case I would have started with the colonoscopy 4 report. And then followed it through for the medical records 5 I had available. 6 Q. And did you dictate your report? 7 A. I did not, no. 8 Q. The copy that you have -- is your copy signed? 9 A. I think it -- it has probably signed -- or it has, "Sent 10 without signing to avoid delay." 11 Q. Did you actually type this yourself? 12 A. Yes, sir. 13 Q. Good job. 14 A. Thank you. 15 Q. And you've not authored any further opinions -- opinion 16 letters in this case; correct? 17 A. I have not. 18 Q. I take it that your report sets forth the opinions that you 19 intend to offer at the trial of this case. 20 A. I don't think there's anything substantively different, 21 correct. 22 Q. Do you know how many hours you have invested in the review of 23 this case thus far? 24 A. No, I'm sorry, I don't. 25 Q. Is there any information that you wanted to have that you 0025 1 didn't receive for whatever reason in order to be complete 2 and thorough in your review of this case? 3 A. No, I don't think so. 4 Q. You didn't feel that the testimony of Mrs. Thompson was 5 important for you to consider? 6 A. No, I think it was reflected in the other materials that I 7 had available. 8 Q. What materials reflected what Mrs. Thompson had to say? 9 A. Well, I think of the issues at hand, it was what was 10 reflected in the medical record about the phone call 11 conversation back and forth. 12 Q. Tell me what your understanding is as to what Mrs. Thompson 13 had testified to concerning her husband's complaints prior to 14 the time that the telephone call was made to Dr. Melamud on 15 the evening of April 14th. 16 A. I don't know that I can say what she testified to, because I 17 didn't see her deposition. 18 Q. And from the standpoint of someone that would be familiar 19 with what Mr. Thompson's signs and symptoms were after 20 leaving the hospital at South Pointe Hospital on the 14th, do 21 you know of anyone that would be more familiar with his 22 condition than Mrs. Thompson? 23 A. Other than Mr. Thompson, no. 24 Q. And certainly you want to be -- as an expert, you want to be 25 objective and complete in terms of providing the history as 0026 1 it relates to what Dr. Melamud did or should have done in 2 responding to this patient; correct? 3 A. Correct. 4 Q. Is there anything that you intend to review between now and 5 the time of trial? 6 A. Not unless it's provided by you or Mr. Hupp. 7 Q. As you sit here right now, is there anything that you have 8 requested that you feel you need to review in order to be 9 complete and thorough and fair in your evaluation of this 10 case? 11 A. I don't believe so, unless it's something I am completely 12 unaware of. 13 Q. Doctor, looking at your current CV, which I think we marked 14 as Plaintiff's Exhibit 1, is that -- 15 A. Yes, correct. That's what it was marked as, yes. 16 Q. Are there any presentations that you have given that relate 17 to the topic of post colonoscope complications? 18 A. Off the top of my head, I don't think so. But I can look 19 through here quickly. 20 Q. If you would, please. 21 A. No, I didn't see anything. 22 Q. Any articles that relate to complications following 23 endoscopic procedures? 24 A. Well, that's different than -- I mean, are you saying 25 laparoscopic or colonoscopic? 0027 1 Q. Well, let's deal with colonoscopic. 2 A. For colonoscopic, nothing off the top of my head, no. That's 3 not been typically an area I've written on. 4 Q. What is the difference between an endoscopic procedure and a 5 colonoscopic procedure? 6 A. Well, it can be a wide range. I mean, some of these are 7 paired with laparoscopies, some what we call now NOTES, 8 because that's the more modern term, and that would be 9 operations through different kinds of scopes, not a flexible 10 endoscope. 11 Q. What type of procedure did Dr. Melamud perform on 12 Mr. Thompson? 13 A. He had a colonoscopic polypectomy. 14 Q. And in your practice, I know you said that you are doing -- 15 well, besides the six colonoscopes, whether they be 16 diagnostic or therapeutic a week -- 17 A. Correct. 18 Q. -- how many colonoscopic polypectomies do you do in your 19 practice? 20 A. It would be probably about 10 percent of that number. That 21 would be a typical ratio of polyps being present on 22 colonoscopy. 23 Q. Doctor, are you familiar with Sivak, S-i-v-a-k, 24 Gastroenterologic Endoscopy? 25 A. I know the name. 0028 1 Q. You're familiar with that text? 2 A. Only by the name. I'm not sure I can recall seeing the 3 actual textbook. 4 Q. Do you teach residents on management of complications 5 following colonoscopy? 6 A. Yes. 7 Q. Do you use journals or do you use texts -- textbooks? 8 A. Mostly we would review journal articles on the topic. 9 Q. What journals in the area of surgery do you regularly review 10 to keep current on evidence-based medicine? 11 A. I probably look at Diseases of Colon and Rectum. Surgery. 12 Annals of Surgery. I can't recall what Sage's calls itself 13 anymore; they are a journal, though. And World Journal of 14 Surgery. Those are probably the major ones that I read. 15 Q. And I asked you this before. Of those journals that you 16 read, you've not referred to any of those in connection with 17 the opinions that you've expressed either in your report or 18 that you intend to rely upon at trial; is that a fair 19 statement? 20 A. No specific article, correct. 21 Q. Are there any studies that you are relying upon to support 22 any of the opinions that you intend to provide at the time of 23 the trial of this matter? 24 A. Just based on my education, training and experience. 25 Q. Fair enough. The only reason I ask that is, Doctor, in Ohio 0029 1 now experts can refer to or rely upon journal articles in 2 their direct examination. So I just want to find out whether 3 or not there's anything for your report or up to this very 4 date that you reviewed or considered to be supportive of any 5 of the opinions that you've expressed in your report. 6 A. If I were to quote one, I would provide you the reference. 7 Q. But as we sit here right now, a couple months away from 8 trial, there's nothing that you are aware of? 9 A. Correct. 10 Q. And, obviously, to the extent that you do discover something, 11 I would ask that you notify Mr. Hupp so that I have an 12 opportunity to see it and, as necessary, to question you 13 about that before trial. 14 A. Absolutely. 15 Q. Thank you. Do you know Dr. Bochicchio? 16 A. No, I do not. 17 Q. You've read over his deposition and you know that there are 18 certain areas where he disagrees with -- with the opinion 19 that you expressed in your report. 20 A. Yes. 21 Q. Have you done any research to determine his background or his 22 level of expertise? 23 A. No, just whatever information was provided in the deposition. 24 Q. What about Dr. Melamud? When you were in Cleveland, did you 25 have any occasion to meet him? 0030 1 A. Not that I personally recall, no. 2 Q. Have you ever talked to him during the course of this 3 litigation? 4 A. No. 5 Q. Doctor, have you ever perforated a colon performing either a 6 diagnostic or therapeutic colonoscopy? 7 A. Once. 8 Q. I'm sorry? 9 A. "Once." 10 Q. One? 11 A. One, yes. 12 Q. How long ago was that? 13 A. Probably 1993. 14 Q. And was that a diagnostic or therapeutic? 15 A. It was a diagnostic. 16 Q. Where was the perforation located? 17 A. Sigmoid colon. 18 Q. How large of a perforation was it? 19 A. It was probably about 5 centimeters long. 20 Q. Did you recognize that immediately? 21 A. Yeah, it was fairly obvious immediately after the procedure. 22 Q. Was this a patient that was having a colonoscopy on an 23 out-patient or in-patient basis? 24 A. It was an out-patient exam. 25 Q. And I presume that you -- well, tell me what did you do to 0031 1 correct the perforation. 2 A. We took the patient to the operating room. I think I was 3 able to repair it, but I don't recall the specifics. 4 Q. The patient didn't die? 5 A. Correct. 6 Q. What is -- in your report, you indicate that bowel 7 perforation is a recognized complication of a colonoscopic 8 polypectomy; true? 9 A. True. 10 Q. What is the incidence of bowel perforation? 11 A. Depends on -- you know, on the type of polypectomy. But 12 for -- in this case, with a hot biopsy polypectomy, it's 13 probably somewhere around a 10th of a percent, would be a 14 reasonable number across the literature. 15 Q. With a sessile polyp, is there an increased incidence of 16 perforation? 17 A. Yes, but more with snare than with hot biopsy. 18 Q. We can agree, can we not, that Mr. Thompson experienced a 19 colonic perforation following his diagnostic colonoscopy? 20 A. Actually, it became a therapeutic, because it was after 21 polypectomy. But, yes, he did have a perforation. 22 Q. So it starts out as diagnostic. Once the actual polyps and 23 the masses are identified and treated, it obviously is no 24 longer diagnostic; it's therapeutic? 25 A. Correct. 0032 1 Q. To accurately reflect what Dr. Melamud did, should I refer to 2 this as a diagnostic or a therapeutic or is it a hybrid? 3 A. I think it would be fair to say it was a therapeutic. 4 Q. Okay. Just to make sure that -- the English language is a 5 lovely thing. I just want to make sure that I'm not 6 misstating anything that you've just said to me. We can 7 agree that Mr. Thompson experienced a colonic perforation 8 following his therapeutic colonoscopy; true? 9 A. Correct. 10 Q. What's the definition of peritonitis? 11 A. It would be inflammation within the abdominal cavity. 12 Q. Are there classic signs and symptoms that you see in a 13 patient who has developed peritonitis following a 14 therapeutic -- following a perforation caused during a 15 therapeutic colonoscopy? 16 A. Well, there's a spectrum there of response to the 17 perforation, so it can be small and just free air. Typically 18 those patients have very few in the way of symptoms. And it 19 can range all the way to severe localized abdominal pain with 20 a -- a bigger perforation. 21 Q. Are the symptoms individualized or are the symptoms more 22 dictated by the size of the perforation? 23 A. Probably more dictated by the degree of peritonitis. 24 Q. Can we agree that Mr. Thompson experienced peritonitis as a 25 consequence of his colonic perforation? 0033 1 MR. HUPP: Objection. 2 BY MR. MISHKIND: 3 Q. Doctor? 4 A. Yep, okay, I was just waiting to be sure you didn't have a 5 response. He had localized peritonitis at the site of 6 perforation. 7 Q. What was the cause of this localized peritonitis? 8 A. It was the perforation at the polypectomy site. 9 Q. And was it the -- the distal -- which area of the -- of the 10 colon -- in terms of the areas that were therapeutically 11 treated, which area, based on your review, was the site of 12 the -- the perforation? 13 A. I guess I would call it either distal descending or proximal 14 sigmoid colon. 15 Q. When do you believe the perforation occurred to the colon? 16 A. Typically, given this mechanism, it would take about -- 17 anywhere from 6 hours to 24 or so to present. So I would -- 18 I would say he probably -- given the time course here, if I 19 remember the hours right, would be somewhere between 6 and 8 20 hours, maybe. 21 Q. Now, the actual mechanism that caused the perforation 22 occurred during the colonoscopy; true? 23 A. Well, that was -- yeah, that was when the thermal injury 24 occurred. And then there's a period of time for dissolution 25 of the tissue as a result of the thermal injury that actually 0034 1 results in the perforation. The actual hole. 2 Q. Sure. 3 A. Okay. 4 Q. So it's a -- the physiological response to the thermal injury 5 is what you're referring to, occurred X number of hours after 6 the colonoscopy had been completed? 7 A. That would be fair, yes. 8 Q. And obviously, there is some range of time that one has to 9 apply because the patient wasn't in the hospital at the time 10 that the -- that the perforation actually established itself. 11 But your opinion would be that it most likely occurred at 12 about what time after the colonoscopy? 13 A. Again, just so we're clear, what I'm describing is there's 14 a -- there's the application of the thermal energy. And then 15 there's a period of time for that thermal injury, which has 16 injured the bowel wall, to develop that full thickness 17 defect; i.e., the hole. And then there's the clinical 18 presentation of the peritonitis, the localized peritonitis 19 that occurs as a result of the defect. Is that --? 20 Q. But the actual establishment of the perforation from the 21 thermal injury, when do you believe that occurred? 22 A. I think that the -- the defect, the actual hole, formed 23 sometime, you know, 6 hours or so, 6 to 8 hours after the 24 actual procedure was performed. I don't think it was formed 25 immediately, if that's what you're trying to ask. 0035 1 Q. No, I -- and I'm not -- I'm just trying to get a range from 2 you. 3 A. Okay. 4 Q. So somewhere in the range of 3:00 to 5:00 o'clock in the 5 afternoon? 6 A. That would be fair. I think the procedure ended around 7 10:00. If he was discharged around 10:00 o'clock, if I 8 recall, in the morning. So, yeah, two hours, yeah, 9 4:00 o'clock would be about that. It would be about 6 hours. 10 If that's the right time frame. 11 Q. Would you agree, Doctor, that if there's a thermal injury 12 that causes the actual hole, that the signs and symptoms -- 13 the early signs and symptoms of a perforation can vary from 14 patient to patient? 15 A. "The early signs." Well, again, I -- I'm not -- I think 16 we're confusing the perforation with the underlying 17 pathophysiology. So, like I said, a perforation alone can 18 range from no symptoms to severe peritonitis, depending on 19 the size of the defect and the amount of contamination. 20 But -- but if you're asking about symptoms of 21 peritonitis versus no peritonitis, then, no. Once you have 22 peritonitis, the symptoms are fairly consistent, patient to 23 patient. 24 Q. What's the difference between -- you used the term, "acute 25 peritonitis." Why do you use the term, "acute peritonitis"? 0036 1 A. I guess just a time course to presentation. I mean, we -- 2 you know, peritonitis can last several days or be manifest 3 late. So I guess I would -- I would broadly define acute 4 peritonitis in close proximity to the time of contamination. 5 Q. Doctor, would you agree that the most important element in 6 the management of a patient with a perforation caused by a 7 colonoscopy is the recognition that the complication has 8 occurred? 9 A. That would be important, yes. 10 Q. Would you agree that abdominal pain following colonoscopy is 11 a sign of a potential bowel perforation? 12 A. Abdominal pain would be, yes. 13 Q. Can we agree that persistence of abdominal distention is an 14 important element in recognizing the possibility of 15 perforation? 16 A. I think those are two separate issues. I mean, distention 17 can be a not infrequent symptom after colonoscopy. 18 Q. Can abdominal distention also be an element consistent with 19 the possibility of a perforation? 20 A. It would be highly unusual to have distention and not have 21 fairly severe pain, as well. 22 Q. So if the patient has distention and pain, are those two 23 classic signs that would be consistent with the potential for 24 perforation? 25 A. Again, I think pain is the most important. But, yes, the two 0037 1 together would be concerning, as well. 2 Q. When one refers to bloating, how do you correlate that to a 3 patient who clinically has abdominal distention? 4 A. Well, again, one is a sign and one is a symptom. So bloating 5 would be how a patient would describe the abdominal -- the 6 feeling of gas pressure. And distention would be more a 7 physical finding that we would identify as a physician. 8 Q. Would you agree it's very difficult to assess abdominal 9 distention over the telephone? 10 A. Well, it's a physical exam finding, so, yes, it would be 11 impossible. 12 Q. Unless you are really, really good at your trade. 13 A. X-ray vision through the telephone. 14 Q. Got it. Doctor, would you agree with me that if colonic 15 perforation is within the differential on a patient that has 16 undergone an out-patient therapeutic colonoscopy, close 17 observation for clinical deterioration of a patient's 18 condition is critical? 19 A. If one were suspicious of a perforation, yes. 20 Q. Can we agree that perforation -- excuse me, perforation 21 associated with a colonoscopic polypectomy is a major 22 complication? 23 A. Of that procedure, yes. 24 Q. Can we agree that Mr. Thompson was at risk of perforation by 25 virtue of undergoing a colonoscopic polypectomy? 0038 1 A. There is a prescribed risk of that procedure, yes. 2 Q. Would you agree that the principles -- are you familiar with 3 the principles of management for perforations -- for 4 perforations of the colon -- poorly worded. 5 As a surgeon, do you have certain guidelines that 6 you follow in terms of the management of a patient that may 7 have a perforation? 8 A. Yes. I have a specific approach. 9 Q. Tell me. 10 A. If they have no signs of peritonitis clinically and only a 11 small amount of free air, then I'm willing to observe that 12 patient without anything by mouth, IV fluids and IV 13 antibiotics. And then follow white count and clinical signs 14 from there. 15 If they have obvious peritoneal signs on exam, then 16 I would go immediately to the operating room. Probably in 17 today's world, do a laparoscopic approach, because most of 18 these you can repair laparoscopically. 19 Q. Again, the determination in terms of management of that 20 patient's perforation requires a patient to be clinically 21 evaluated as opposed to assessed over the telephone; correct? 22 A. If I was worried that they had peritonitis, yes, I would 23 expect to see them. 24 Q. Or if you were concerned that the patient may have a 25 perforation, that's also a reason why the patient needs to be 0039 1 evaluated; true? 2 A. If I was concerned, yes. 3 Q. Are the principles in terms of managing a perforation of the 4 colon any different if you're dealing with a therapeutic 5 colonoscopy versus a diagnostic colonoscopy? 6 A. No, aside from the fact that usually the defects are larger 7 in a diagnostic colonoscopy, so more of those patients would 8 require surgical repair. 9 Q. I'm sorry, the defects are larger in a diagnostic or a 10 therapeutic? 11 A. Diagnostic. 12 Q. Why is that? 13 A. Because they are usually tortion injuries, so -- pressure of 14 the scope usually against an adhesion, and so the force is 15 transmitted, and it causes usually a linear rent in the 16 bowel. 17 Q. Is there any literature that you can cite me to that would 18 support that? 19 A. That's the general body of the literature. I can't quote you 20 a specific article. 21 Q. Are there certain signs of delayed perforation that you look 22 for following a polypectomy due to either a coagulation or 23 cautery injury? 24 A. No, the same signs and symptoms as immediate defect. It's 25 just the time frame that they present. The signs and 0040 1 symptoms are really pretty similar. 2 Q. In terms of a thermal injury, and basically the -- what he 3 had was a thermal injury, can we agree upon that? 4 A. I would concur with that, yes. 5 Q. Can a thermal injury progress through or to the colon wall 6 causing a perforation in less than 6 hours? 7 A. I guess in theory it could happen immediately if enough 8 energy was transferred. I've not ever seen that, but it 9 could happen. 10 Q. What are the variables that you consider in assessing a 11 thermal injury in terms of the onset of colon wall 12 perforation? 13 A. Well, again, I'm not sure that the mechanism that the 14 defect -- the mechanism of how the defect is created doesn't 15 really change my assessment pattern. The signs and symptoms 16 would be the same. It would just be a -- a time frame of 17 presentation. 18 Q. What is your understanding of Mr. Thompson's symptoms 19 throughout the afternoon of the 14th, prior to the telephone 20 call to Dr. Melamud? 21 A. That he called primarily complaining of bloating and sort of 22 distention type symptoms. Again, not the physical exam 23 finding, but his description of that. And that with the 24 records I had, he did not complain of discrete localized 25 pain. 0041 1 Q. And, again, that is based upon the review of the information 2 that you've identified previously? 3 A. Yes, sir. 4 Q. And would -- when a patient has bloating 10 hours -- 10 to 12 5 hours following a colonoscopy, have you ever prescribed a 6 Fleet's enema? 7 A. I have not. 8 Q. Can we agree that from the literature, prescribing a Fleet's 9 enema would be contraindicated in a post colonoscopy patient 10 who calls, complaining of bloating? 11 MR. HUPP: Objection. Go ahead. 12 A. I am not sure it's contraindicated. I am not really aware of 13 any literature in that regard. It's just my practice pattern 14 would be that I typically wouldn't prescribe that. 15 BY MR. MISHKIND: 16 Q. And are there any risks that you're aware of in terms of 17 suggesting that a patient administer a Fleet's enema in the 18 face of abdominal or -- abdominal bloating following a 19 therapeutic colonoscopy? 20 A. With just bloating symptoms, no, not that I'm aware of. 21 Q. Now, would your opinion, Doctor, in terms of the use of -- 22 well, strike that. In your practice, you've never used -- 23 never suggested to a patient a Fleet's enema? 24 A. I typically don't. No, I have not done it in my practice. 25 Q. If a patient has abdominal pain as well as an inability to 0042 1 pass gas and is weak and has bloating, are those symptoms, 2 combined together, of any greater clinical significance than 3 a patient that simply calls with a complaint of bloating? 4 A. The pain is really the key element. 5 Q. And what -- what significance is that, if you are presented 6 with evidence that the patient has pain as well as -- well, 7 if a patient calls 10 hours post colonic polypectomy, and 8 calls after hours and complains of pain, of what significance 9 is that in terms of the differential that you would have? 10 A. If they call complaining of abdominal pain, then I would tell 11 them just to come in because I would be worried about a 12 perforation. 13 Q. And if it's after hours, would the standard of care require 14 the patient be directed to an emergency room? 15 A. They would actually -- I would probably send them to the 16 emergency room any time of the day. 17 Q. So in this case, if Mr. Thompson said to Dr. Melamud that he 18 had pain, and it was essentially 10 to 12 hours after the 19 colonoscopy, can we agree that the standard of care for a 20 reasonable and prudent physician would be to send 21 Mr. Thompson to the emergency room to be assessed? 22 A. If the patient had complained of abdominal pain, then, yes, 23 he should have been assessed in the emergency room. 24 Q. And failure to direct the patient to the emergency room with 25 a complaint of pain, can we agree that that would be a 0043 1 violation of the standard of care? 2 MR. HUPP: Objection. Go ahead. 3 A. Let me just rephrase, see if I accurately got it. If the 4 patient called complaining of pain, and he was not referred 5 to the emergency room, would that be a violation of the 6 standard of care? 7 BY MR. MISHKIND: 8 Q. Yes, sir. 9 A. That would be a violation of the standard of care. 10 Q. Would it be reasonable for the physician, in the face of a 11 complaint of pain, to tell the patient to try a Fleet's enema 12 first, and then if that didn't work, call the physician back? 13 A. If the patient had abdominal pain, then he should be 14 evaluated in the emergency room without any further at home 15 intervention. 16 Q. So, again, the -- try the Fleet's enema, and if that doesn't 17 work, call me back. In the face of pain, that would be a 18 violation of the standard of care; correct? 19 A. In the face of pain, that would be correct, yes. 20 Q. Would you agree that prompt diagnosis is the most essential 21 step in the successful management of post colonoscopic 22 complications? 23 A. Earlier is better, yes. 24 Q. And would you agree that it's always better to play safe and 25 have a patient seen in the emergency room if the patient is 0044 1 complaining of pain after a polypectomy? 2 A. If the -- 3 MR. HUPP: Objection, move to strike. Go ahead. 4 A. If they are complaining of pain, yes, it would be wise to 5 evaluate the patient in the emergency room. 6 BY MR. MISHKIND: 7 Q. Now, Doctor, in terms of the history that Dr. Melamud 8 obtained from Mr. Thompson, do you know whether he recorded 9 that history in his office notes? 10 A. I don't recall seeing it in the office note. I think where I 11 saw it was in the admit note at the hospital. 12 Q. And this was after the patient was already in the hospital, 13 having suffered the cardiopulmonary arrest? 14 A. Correct. Yes. 15 Q. Can we agree that not all small perforations following a 16 colonoscopy will seal themselves off? 17 A. I think that would be fair. 18 Q. So that if within the differential a reasonable physician 19 should consider a perforation following colonoscopy, can we 20 agree that the standard of care is to direct that patient 21 immediately to the emergency room to be evaluated? 22 A. Again, if the patient is complaining of pain, that's where 23 they should be evaluated, yes. 24 Q. And can we agree that small perforations following a 25 polypectomy that establish themselves 6 to 8 hours after the 0045 1 polypectomy can result in peritonitis? 2 MR. HUPP: Objection. Go ahead. 3 A. Yeah, perforation -- yeah, at any time it can manifest as 4 polypec- -- as peritonitis. 5 BY MR. MISHKIND: 6 Q. And can we agree that a perforation that leads to peritonitis 7 can trigger cardiac arrhythmias? 8 A. Perforation by itself? No. 9 Q. What needs to happen? 10 A. You would need fairly severe peritonitis to be able to do 11 that. 12 Q. Doctor, in your -- looking at your report, in the brief 13 summary -- 14 A. Yes. 15 Q. And, again, when you prepare a report, having done this 16 before 50 or so times, you know that it's important when you 17 express an opinion in a report to be thorough and accurate in 18 the history and the opinions that you've expressed; correct? 19 A. I try to be. 20 Q. Okay. In the Brief Summary where you have, 21 "Dr. Melamud spoke with both the patient and his 22 spouse and a recommendation was made for the 23 patient to self-administer an enema and call back 24 the physician if there were any further 25 concerns," 0046 1 where did you get the information that Dr. Melamud spoke to 2 both the patient and his spouse? 3 A. It was probably that deposition that I had available. 4 Q. Is it your testimony that Dr. Melamud recommended to both the 5 patient and the spouse that the patient self-administer an 6 enema and call back? 7 A. I think that was my interpretation of the information, yes. 8 Q. And certainly if your interpretation of the information is 9 inaccurate, that might impact some of the opinions that you 10 hold in this case; true? 11 MR. HUPP: Objection. 12 A. I'm not sure which ones it would impact, but I guess around 13 the recommendation of the enema, that would probably be it. 14 BY MR. MISHKIND: 15 Q. In your Opinion paragraph, it says, 16 "It is not clear that the patient communicated 17 abdominal pain or fever at the time of the phone 18 call...warranting a recommendation to go to the 19 emergency room." 20 Do you see that? 21 A. Yes, sir. 22 Q. We can agree that a complaint of abdominal pain alone would 23 have been sufficient to have mandated that Dr. Melamud 24 recommend that Mr. Thompson go to the emergency room; 25 correct? 0047 1 MR. HUPP: Objection, asked and answered several 2 times. 3 BY MR. MISHKIND: 4 Q. Go ahead, Doctor. 5 A. I think that's fair, yes. 6 Q. The patient didn't need to have fever at the time of the call 7 to be within the signs or symptoms before Dr. Melamud had an 8 obligation to send the patient to the emergency room; true? 9 A. True. 10 Q. Tell me what you mean by, "It's not clear that the patient 11 communicated abdominal pain." 12 A. That there was no reference that he mentioned abdominal pain. 13 He just mentioned abdominal bloating, which are not 14 synonymous to me. 15 Q. And, again, that's based upon what you gathered from 16 Dr. Melamud's testimony; correct? 17 A. That was the information I had available, yes. 18 Q. And you're giving the benefit of the doubt to Dr. Melamud 19 with regard to what he said occurred during that 20 conversation; true? 21 A. Well, that, and based on what's in the medical record, yes. 22 Q. Well, what is in the medical records that eliminates the 23 statement that the patient had abdominal pain either that 24 afternoon or that evening? 25 A. I believe his admit note actually said that. That he 0048 1 complained of bloating, not abdominal pain. 2 Q. And that's the admit note by Dr. Melamud? 3 A. Correct. 4 Q. Is there anyplace else that you see a history, other than by 5 Dr. Melamud, that rules out the patient complaining of 6 abdominal pain during the encounter with Dr. Melamud that 7 evening? 8 A. No, there's not. 9 Q. Now, Doctor, just going through your opinions, if, in fact -- 10 and I know Mr. Hupp's going to object because he objected a 11 moment ago -- but in your opinion where it said, "It is not 12 clear that the patient communicated abdominal pain," if in 13 fact abdominal pain was communicated, then we can agree that 14 Dr. Melamud violated the standard of care by not recommending 15 that the patient go to the emergency room; correct? 16 A. Correct. 17 MR. HUPP: All right. I didn't object, but I trust 18 you're not going to beat that over our heads anymore, Howard. 19 MR. MISHKIND: Three times is probably enough. 20 MR. HUPP: Try about 13, pal. 21 MR. MISHKIND: You know I never repeat myself. 22 MR. HUPP: All right. We have until 4:00 o'clock 23 today, so. 24 MR. MISHKIND: Not a problem. 25 MR. HUPP: All right. Good. Because he has other 0049 1 opinions you haven't asked him about yet. 2 MR. MISHKIND: Okay. I'm going through his report 3 and I'm looking for the opinions. 4 MR. HUPP: Okay. 5 BY MR. MISHKIND: 6 Q. Now, you said a bowel perforation after a hot biopsy is 7 usually recognized within 24 hours of the development of the 8 perforation. 9 A. That's true. 10 Q. Bowel perforations after a hot biopsy polypectomy can occur 11 less than 24 hours after the -- the polypectomy; correct? 12 A. I think I said within, so, yes. 13 Q. I'm sorry, sir? 14 A. I said, "within," in my report. But, yes, that's true. 15 Q. What I want to just understand is -- again, because the 16 English language is so beautiful -- the fact that he called 17 10 hours or so after the colonoscopy, and you used the term, 18 "within 24 hours," you're not suggesting that at the time 19 that Mr. Thompson spoke to Dr. Melamud, that he didn't have a 20 bowel perforation; are you? 21 A. No. It could well have been there. I agree. 22 Q. And certainly at the time that he called, he was -- from what 23 you could tell from the review of the records, he was 24 hemodynamically stable; was he not? 25 A. Well, at home I don't know that we have any evidence for or 0050 1 against, but I would assume he was talking on the telephone, 2 so, yes, he should have been adequately profusing. 3 Q. And can we agree that if he had a bowel perforation, although 4 hemodynamically stable, that it would have been preferable to 5 have had the patient in the hospital shortly after that 6 8:00 p.m. encounter as opposed to arriving at the hospital 7 after midnight, after he suffered a cardiopulmonary arrest? 8 A. Certainly before the cardiopulmonary arrest would have been 9 preferable, yes. 10 Q. If the patient had been admitted to the hospital between, 11 say, 8:00 and 9:00 p.m. because of the history of abdominal 12 pain, coupled with abdominal bloating, and had been 13 determined to have had a bowel perforation, what would the 14 treatment have been for this patient? 15 A. Well, had the patient complained of abdominal pain, and then 16 subsequently been evaluated in the emergency room, then there 17 would have been findings, likely free air on x-ray and/or 18 clinical signs consistent with peritonitis that would likely 19 have led to an operative intervention. 20 Q. And I think we do have -- the x-ray shows free air; correct? 21 A. Correct. 22 Q. Doctor, did you see anything in your review that would have 23 prevented Dr. Melamud from referring Mr. Thompson to the 24 emergency room rather than prescribing a Fleet's enema and 25 then telling him to call back? 0051 1 MR. HUPP: Objection. 2 A. I think the bloating alone is not an unusual phone call after 3 colonoscopy. So in the absence of pain, I don't know that 4 there was anything warranting that he recommend the patient 5 go to the hospital. 6 BY MR. MISHKIND: 7 Q. And again, if we just deal with the bloating, assuming that 8 that is, in fact, what Mr. Thompson called for, that he just 9 called at 8:00 p.m., he had bloating, what I think you just 10 told me was, it would not be unusual to -- for a physician to 11 just tell the patient to take it easy, but not necessarily go 12 to the emergency room. 13 A. Correct. 14 Q. But certainly you wouldn't recommend and have not used in 15 your practice a Fleet's enema as a means to resolve the 16 bloating. 17 A. That's correct. 18 Q. Explain to me in your Opinion paragraph what you mean when 19 you say, 20 "It is extremely unusual for perforation of the 21 colon to cause cardiac arrest due to the time 22 frame needed for onset of inflammatory response." 23 A. I have never in my career seen a patient from any mechanism 24 of colonic perforation present with cardiac arrest in this 25 couple, three hour time frame. 0052 1 Q. Do you recall Dr. Bochicchio's comments where he basically 2 said that you're a hundred percent wrong? 3 A. Well, I would concur the opposite conclusion. 4 Q. If he didn't have an inflammatory response, do you hold an 5 opinion as to what caused his cardiac arrest? 6 A. I'm not an expert, but with a past history of a seizure 7 disorder and subtherapeutic Dilantin level and significant 8 myglobin, I would suspect a seizure. 9 Q. But you just said you're not an expert in that. Are you able 10 to state that to a reasonable degree of medical probability? 11 A. As a surgeon, I guess I know I'm not the expert witness in 12 that field. But as a surgeon and a doctor, that's fairly 13 consistent findings that would be consistent with a seizure 14 in my experience. 15 Q. Now, Doctor, you didn't say anything about that in your 16 report; did you? 17 A. About the seizure? No. 18 Q. And have you written a subsequent opinion letter expressing 19 that the patient probably died of a seizure? 20 A. Well, I don't think he died of a seizure. I think that what 21 I was getting at in my letter was there was some other 22 mechanism for the cardiorespiratory arrest. 23 MR. HUPP: Howard, if it helps, Dr. Senagore's 24 going to refute your expert on the signs and symptoms of 25 peritonitis and the effects thereof. My other expert, the 0053 1 forensic pathologist, will be addressing your seizure issue. 2 MR. MISHKIND: And I just want to find out, 3 because -- and I understand that he's going to refute what 4 Dr. Bochicchio has to say. 5 BY MR. MISHKIND: 6 Q. I'm just trying to find out when you said that it's unusual 7 for perforation to cause cardiac arrest in the time frame 8 needed, you then raised the issue that he may have had a 9 seizure because of his history of seizures. And that that 10 caused his cardiac arrest. 11 MR. HUPP: Well, I think what Dr. Senagore's going 12 to be asked, to be fair to you, is why don't you believe he 13 died from peritonitis. And that's really going to be the 14 substance of his -- of his portion of the testimony. 15 MR. MISHKIND: Okay. 16 BY MR. MISHKIND: 17 Q. Well, Doctor, I will ask you that in a second. But do you 18 believe that -- and if you don't have an opinion to a 19 probability, just tell me. But obviously we know that the 20 autopsy -- and you reviewed the autopsy; correct? 21 A. Correct. 22 Q. And in the autopsy, it indicates that Mr. Thompson suffered 23 anoxic encephalopathy and acute ischemic cerebral infarct and 24 acute peritonitis due to cardiopulmonary arrest, but makes no 25 mention of a seizure. And I guess my question to you is, are 0054 1 you able to state to a probability that Mr. Thompson suffered 2 a nocturnal seizure that resulted in his anoxic 3 encephalopathy in this case? 4 A. You said a lot of things. Can I break them down and you tell 5 me if I -- if I got off tangent. 6 Q. That's fine. My question may have been off tangent, but you 7 go ahead, and between the two of us, we'll get back online. 8 A. Okay. You described several things in the pathology report, 9 on the autopsy. And the autopsy is restricted to anatomic 10 findings, so either a gross examination or a microscopic. So 11 I think in the conclusion, they were clearly able to see 12 signs of anoxic injury and the infarcts that they described, 13 which were likely secondary to the cardiac arrest. But the 14 peritonitis was separate from that order. It got grouped in 15 there. And so I think that the peritonitis needs to be 16 separated out as not a result or tied to the cardiac arrest. 17 In terms of a seizure, it's my hypothesis, based on 18 the available data, that there needs to be another 19 explanation for his cardiac arrest, because I don't think the 20 peritonitis was severe or advanced enough to cause a cardiac 21 arrest. And so I'm surmising, based on his medical history, 22 that seizure would be a possible cause of that. 23 Q. Okay. And that is, you are surmising that it's a possible 24 cause; true? 25 A. Well, I'm suggesting that that would be consistent with his 0055 1 medical history as a colorectal surgeon. 2 Q. But that -- but I -- again, English is a beautiful language. 3 I just want to make sure that you stand by what you just 4 said. 5 A. I guess I'm struggling with -- I am not trying to set myself 6 up as a neurologic expert, so what -- all I'm telling you is 7 as a surgeon, it reasonably -- it meets the reasonable 8 probability that his cardiac arrest was secondary to a 9 seizure and not secondary to peritonitis. 10 Q. And if he was in the hospital at 8:00 to 9:00 p.m. because of 11 abdominal pain secondary to the perforation, would you agree 12 that his probability of avoiding a cardiac arrest would have 13 increased as opposed to being in his own home, laying in a 14 bed at the time that he experienced this seizure and cardiac 15 arrest? 16 A. Well, I -- 17 MR. HUPP: Objection. 18 A. You're getting kind of out of my field of expertise, but I 19 don't know that by definition being in the hospital he would 20 not have suffered a seizure. 21 BY MR. MISHKIND: 22 Q. Well, what kind of monitoring would he have had if, in fact, 23 he was destined to have a seizure? 24 A. Again, I am not a neurologist, but I don't know that there's 25 any way to monitor an impending seizure. You just end up 0056 1 seeing it when it responds. 2 Q. And do all patients that seize experience anoxic 3 encephalopathy? 4 A. Well, if you aspirate or some complication of the seizure, 5 and that leads to cardiac arrest -- the seizure by itself 6 doesn't lead to cardiac arrest, but he could well have 7 aspirated, and that can happen in the hospital, as well. 8 Q. Yeah, but certainly, Doctor, in fairness, can we agree that 9 your chances of aspirating and suffering anoxic 10 encephalopathy are greater, are higher, if you're laying in 11 your own bed, not monitored, as opposed to in an emergency 12 room or in a hospital ward at the time that that event 13 occurs? 14 MR. HUPP: Objection, go ahead. 15 A. You're kind of out of my area of expertise in terms of 16 outcomes with seizures. But I think you can aspirate in or 17 out of the hospital. We certainly have patients 18 unfortunately that do have aspiration pneumonitis in the 19 hospital. 20 BY MR. MISHKIND: 21 Q. Is the chance of survival of a patient following a -- maybe 22 just a basic issue following a myocardial infarction, are the 23 chances of a patient surviving greater if the patient is in 24 the hospital and being monitored as opposed to out in the 25 community at the time? 0057 1 A. That's a different situation completely. A myocardial 2 infarction. If you ask cardiac arrest, actually the data is 3 not so good for in-hospital cardiac arrest. 4 Q. So you're suggesting that even if Mr. Thompson had been in 5 the hospital, hemodynamically stable at 8:00 to 9:00 p.m., 6 that he was likely to suffer the anoxic encephalopathy and 7 cardiac arrest? 8 A. Well, again, I think you're mixing things up. I don't know 9 that the level of hemodynamic stability was the issue here. 10 I think he -- again, this is my hypothesis of the data 11 available, that he suffered a seizure that was unrelated to 12 hemodynamic stability. It was -- his history, his 13 subtherapeutic Dilantin, and he likely aspirated, and that 14 led to the cardiac arrest. I don't think the seizure 15 directly caused cardiac arrest. 16 Q. Tell me what caused Mr. Thompson to be subtherapeutic with 17 his Dilantin. 18 A. It can happen just by NPO status. I don't know what his 19 levels were consistently before. Again, I don't treat 20 seizures, so there's a variety of things that can alter 21 volume and distribution of medications. 22 Q. Why is it that you believe that the peritonitis was not the 23 cause of his death? 24 A. Because I've never seen it after any mechanism of acute 25 perforation like this. Gunshot wounds, stab wounds, motor 0058 1 vehicle accidents, diverticulitis, no -- no pathology that 2 I'm aware of can lead to this degree of -- this -- to a 3 cardiac arrest. Particularly given the limited location of 4 his peritonitis on autopsy. 5 Q. Where was the peritonitis located? 6 A. Just in the left gutter, along the colon there. 7 Q. Dr. Senagore, have you written on the topic of systemic 8 inflammatory response syndrome? 9 A. I don't think so, no. 10 Q. Have you read any of the publications written by 11 Dr. Bochicchio on the topic? 12 A. Nope, don't think so. Not that I can recall. 13 Q. Can you tell me what the signs and symptoms of SIRS are? 14 A. It depends how advanced they are, but usually they are a 15 combination of multi-system organ failure, so you can run the 16 organs, usually low urine output, usually hypotension, 17 tachycardia. Let's see, what else did I have? Hypoxia. 18 There can be decreased sensorium. Depends how advanced the 19 SIRS is. 20 Q. And, Doctor, I want to be clear, are you suggesting that it 21 would not have been preferable to have had Mr. Thompson in 22 the hospital prior to the events that led to his cardiac 23 arrest? 24 A. No, certainly not. 25 MR. HUPP: Objection to form of the question as 0059 1 well as are you assuming that he was or wasn't in pain? I 2 mean, that was the whole discussion. 3 MR. MISHKIND: Now, now, now, I'm -- I understand 4 that -- I understand that. 5 MR. HUPP: And also I'm objecting, Howard, because 6 that's a retrospective opinion if you're going to use it like 7 that, but go ahead. If you can rephrase it, I'll appreciate 8 it. 9 MR. MISHKIND: I am not going to rephrase it, 10 Steve. And we always -- on causation, we always use the 11 retrospective scopes. And I would appreciate it if you 12 wouldn't testify for him. You've been a very good boy up 13 until now. 14 MR. HUPP: You better take the, "boy," back or 15 we've got problems. 16 MR. MISHKIND: Young man. 17 MR. HUPP: Oh, pfffft. 18 BY MR. MISHKIND: 19 Q. You're not suggesting, Doctor, that if Mr. Thompson had been 20 in the hospital -- and I'll even make it more palatable for 21 Mr. Hupp -- if there was reason in order to comply with the 22 standard of care that he should have been directed to the 23 hospital shortly after 8:00 p.m., you're not suggesting that 24 Mr. Thompson -- that it would not have been preferable to 25 have had him in the hospital prior to the events that led to 0060 1 the cardiac arrest; are you? 2 A. No, I don't think I said that, no. 3 Q. And we can agree that it would have been preferable from the 4 standpoint of his potential for survival to have been in the 5 hospital at 8:00 or maybe 9:00 p.m. as opposed to arriving by 6 ambulance after 12:00 midnight in his condition. 7 A. Certainly treatment prior to the cardiac arrest would have 8 been more efficient and effective. 9 Q. And are you able to state to a probability that had he been 10 in the hospital between 8:00 and 9:00 p.m. that he would have 11 died anyway? 12 A. Well, there were no signs and symptoms, so, I mean, 13 hypothetically, if you somehow knew that he had a 14 perforation, then he might have been in the hospital earlier. 15 But in the absence of pain, that would have been a very 16 difficult diagnosis to make. 17 Q. Can we agree, though, in the presence of pain, that more 18 likely than not, he would have had an increased probability 19 of survival if he had been in the hospital 8:00 to 9:00 p.m. 20 that evening? 21 MR. HUPP: Objection, asked and answered. 22 A. So, again, I -- you're getting out of my area of expertise, 23 because I don't know what likely set off his seizure to -- to 24 instigate the cardiorespiratory arrest. But if you knew 25 there was a perforation, you would have preferred to have him 0061 1 in the hospital sooner. 2 BY MR. MISHKIND: 3 Q. And the likelihood of the patient surviving would have been 4 significantly increased over the likelihood of his surviving 5 after coming in in cardiopulmonary arrest. Can we agree upon 6 that? 7 A. Yes. No question that after a cardiac arrest, his 8 survivability was much diminished. 9 Q. Doctor, looking at the last paragraph of your report -- and 10 then I'm just going to take a couple minute break, and review 11 my notes. We are coming towards the finish line. But in 12 your report, you say, "While the outcome is unfortunate, 13 there is no evidence to suggest that Dr. Melamud violated the 14 standard of care," and that is because of what you perceive 15 to be the absence of a complaint of pain; correct? 16 A. Correct. 17 Q. If there is evidence and the jury determines that 18 Mr. Thompson did complain of pain, then that would alter your 19 opinions concerning Dr. Melamud -- Dr. Melamud's compliance 20 with the standard of care; correct? 21 A. If there were evidence in that regard, yes. 22 Q. As far as the ultimate cause of his death, what you're 23 telling me is that you do not believe that he suffered -- 24 that his death was caused by the peritonitis because there 25 was insufficient time for an inflammatory response to cause 0062 1 the kind of complications that would essentially be lethal. 2 A. Correct. 3 Q. Now, can peritonitis -- can it cause a patient who has a 4 seizure history, can acute peritonitis precipitate a seizure? 5 A. I suppose it's possible if it were very severe. 6 Q. You know what Mr. Thompson's history was with regard to 7 seizures prior to this evening? 8 A. He'd gone a significant period of time without a seizure. 9 But was on medical therapy for it. 10 Q. And other than his Dilantin level being subtherapeutic, and 11 his history of seizures, are you able to point to anything 12 that you feel confident in commenting on that would support 13 an opinion that the patient suffered a seizure, a nocturnal 14 seizure in this case? 15 A. Given the clinical findings, it is to me more plausible that 16 the seizure was the ultimate cause of the -- led more 17 directly to the cardiac arrest. Certainly more so than the 18 level of peritonitis. 19 Q. Are you suggesting that the peritonitis was not contributory 20 at all to the outcome? 21 A. Not to the cardiorespiratory arrest, correct. 22 Q. What was the peritonitis contributory to? 23 A. The peritonitis. 24 Q. Well, what -- what clinical manifestations or clinical 25 complications did the peritonitis cause the patient? 0063 1 A. Well, there was certainly the peritonitis. But I have never 2 seen this level of peritonitis lead to -- directly to a 3 cardiorespiratory arrest without some other intervening 4 problem. 5 Q. If a patient has acute peritonitis at a level that you 6 believe he had, what kind of clinical manifestations or 7 complications can occur to a patient that's not -- that's not 8 timely treated? 9 A. I mean, if it goes untreated, then you end up in multi-system 10 organ failure and ultimately death. 11 MR. MISHKIND: If we could just take a few minute 12 break, Steve. I'm just going to take a look at my notes. 13 MR. HUPP: All right, good. I'll call a taxicab. 14 MR. MISHKIND: We can go off the record for, say, 15 five minutes. 16 MR. HUPP: Yeah, no problem. 17 VIDEO TECH: We're off the record. The time is 18 2:47. 19 (Break was taken.) 20 VIDEO TECH: We're back on the record. The time is 21 2:51. 22 BY MR. MISHKIND: 23 Q. Doctor, I want to just follow up on the previous answers you 24 gave relative to the peritonitis, and I want to ask you 25 whether or not perforation of the colon can cause pain. 0064 1 A. Yes. 2 Q. And if the colon is perforated, even if it's a small 3 perforation, can that still cause pain? 4 A. Yes. 5 Q. And if a patient has a perforation that causes pain, in terms 6 of the impact or the potential impact in a patient's heart 7 rate and blood pressure, what potential problems can that 8 cause? 9 A. From the pain? 10 Q. Yes. 11 A. Typically, it would be increase in blood pressure and 12 tachycardia. 13 Q. Can we agree that when the patient was seen in the emergency 14 room, that there was free interabdominal air? 15 A. Yes. On the x-ray, yes. 16 Q. And can free interabdominal air cause a vasovagal response? 17 A. I've never seen it. 18 Q. You've never seen free interabdominal air cause a drop in the 19 heart rate and a drop in the blood pressure? 20 A. Not in my career, no. 21 Q. And, therefore, in your career, I presume you would be 22 surprised to see well recognized literature that would -- 23 would correlate free interabdominal air causing a vasovagal 24 response? 25 A. It would have to be a very rare event, if I haven't seen it 0065 1 in my career. 2 Q. If in fact a patient has a vasovagal response, does that put 3 the patient at risk for cardiopulmonary arrest? 4 A. Usually not. 5 Q. Why do you say that? 6 A. Because usually vasovagal response, you just faint, for lack 7 of a better word. Without some other antecedent history, it 8 would be rare to have a cardiorespiratory arrest as a result 9 of purely a vasovagal response. That's getting pretty 10 hypothetical. 11 Q. Doctor, I want to just make sure that we -- that I've tied 12 together the opinions that you have in this case. In regards 13 to the standard of care, you've told me that without pain -- 14 other than you wouldn't have recommended a Fleet's enema, but 15 without pain, you would not fault Dr. Melamud for talking to 16 Mr. Thompson, but not telling him to immediately go to the 17 emergency room. 18 A. That's correct. 19 Q. And, by the way, do you fault Mr. Thompson in any respect 20 with regards to the scenario that occurred in this case? 21 A. No, not at all. 22 Q. And, again, that would be the essence sort of -- cutting to 23 the chase, if you will, the essence of your reason why he 24 didn't violate the standard of care is because you have -- do 25 not have any evidence of pain; therefore, no need to send him 0066 1 to the hospital? 2 A. Correct. 3 Q. Are there any other standard of care opinions that we haven't 4 covered? 5 A. I don't think so, no. 6 Q. And then as far as causation, while you would defer -- 7 because you're not a neurologist and you're -- you don't 8 treat seizures, but your opinion as to the relationship 9 between the peritonitis and his ultimate death, you don't 10 believe that there was a sufficient period of time for the 11 amount of peritonitis to have caused his cardiopulmonary 12 arrest? 13 A. Correct. 14 Q. But you do agree that his -- that it would have been 15 preferable to have had him in the hospital to evaluate not 16 only his interabdominal process, but also to evaluate his 17 total hemodynamic status prior to his cardiopulmonary arrest? 18 MR. HUPP: Objection. 19 A. If one were suspicious for a perforation, yes. 20 BY MR. MISHKIND: 21 Q. Okay. Are there any other causation opinions that you intend 22 to provide, other than what we've talked about? 23 A. I don't think so, no. 24 Q. Have I given you a fair opportunity to explain the basis or 25 bases for the opinions that you hold in this case? 0067 1 A. I believe you have. 2 Q. I haven't cut you off in any respect; have I? 3 A. No, sir. 4 Q. Okay. Doctor, I have no further questions for you. I will 5 look forward to meeting you in a couple months. 6 A. Okay. 7 MR. MISHKIND: And I presume, Steve, you would like 8 the Doctor to read? 9 MR. HUPP: Yes, he's going to read it. 10 THE WITNESS: Yes. 11 MR. MISHKIND: I will order the transcript, an 12 e-tran is fine for me. And, Steve, if you can give them -- 13 we can go off the record now. 14 VIDEO TECH: This concludes the videotaped 15 deposition of Dr. Anthony Senagore. We're off the record at 16 2:58. 17 MR. HUPP: The only thing I didn't give her, 18 Howard, was your e-mail address. 19 MR. MISHKIND: Okay. My first initial, and then my 20 last name, M-i-s-h-k-i-n-d. So it's hmishkind at Becker, 21 B-e-c-k-e-r, Mishkind dot com. 22 (Deposition concluded at 2:58 p.m.) 23 END OF RECORD 24 25 0068 1 CERTIFICATE 2 STATE OF MICHIGAN ) ) ss 3 COUNTY OF KENT ) 4 I, DARLENE D. FULLER, Certified Shorthand 5 Reporter and Notary Public, do hereby certify that the 6 foregoing deposition was taken before me at the time and 7 place hereinbefore set forth, and that said witness was duly 8 sworn by me to tell the truth, the whole truth, and nothing 9 but the truth, and thereupon was examined and testified in 10 the foregoing deposition as appears: 11 I FURTHER CERTIFY that the deposition was taken 12 in shorthand and thereafter transcribed by means of 13 computer-aided transcription by me and under my direction and 14 supervision, and that it is a true and accurate transcript of 15 my original shorthand notes. 16 I FURTHER CERTIFY that I am not a relative or 17 employee or attorney or counsel of any of the parties, or 18 financially interested directly or indirectly in this action. 19 IN WITNESS WHEREOF, I have hereunto set my hand 20 this 8th day of October, 2008, at Reed City, Michigan. 21 _____________________________________ 22 DARLENE D. FULLER, RPR, CRR, CM Certified Shorthand Reporter No. 0929 23 Notary Public, Osceola County, Michigan Acting in Kent County, Michigan 24 My Commission Expires: 9-16-2013 25