0001
 1                            VOLUME I
                              PAGES 1-99
 2                            EXHIBITS: Per Index
 3   
 4   
 5             IN THE COURT OF COMMON PLEAS
                  CUYAHOGA COUNTY, OHIO
 6   
 7   
     CAESAR C. DAILEY, etc.  )  CASE NO.
 8         Plaintiff         )  CV-07-629950
                             )
 9   -vs-                    )  JUDGE DANIEL GAUL
                             )
10   OHIO PERMANENTE MEDICAL )
     GROUP, INC., et al.     )
11         Defendants        )
12   
                      * * * * * * *
13   
14            DEPOSITION OF ROBERT YOUNG, M.D., a
15   witness called on behalf of the Plaintiff,
16   pursuant to Rule 30 of the Ohio Rules of Civil
17   Procedure, before Mary E. Rinne, Registered
18   Professional Reporter and Notary Public for
19   the Commonwealth of Massachusetts, at the
20   Massachusetts General Hospital, Department of
21   Pathology, 55 Fruit Street, Warren Building,
22   2nd Floor, Boston, Massachusetts, on Monday,
23   April 6, 2009, commencing at 1:49 p.m.
24   
25   
0002
 1   APPEARANCES:
 2   BECKER & MISHKIND CO., L.P.A.
 3   Skylight Office Tower
 4   1660 West 2nd Street, Suite 660
 5   Cleveland, Ohio 44113
 6   BY:  Howard D. Mishkind, Esquire
 7     Tel: 216.241.2600
 8     Fax: 216.241.5757
 9     E-mail: hmishkind@beckermishkind.com
10     On behalf of the Plaintiff.
11   
12   BUCKINGHAM, DOOLITTLE & BURROUGHS, L.L.P.
13   One Cleveland Center - 17th Floor
14   1375 E. 9th Street
15   Cleveland, Ohio 44114
16   BY:  Dirk E. Riemenschneider, Esquire
17     Tel: 216.615.7325
18     Fax: 216.615.3044
19     E-mail: driemenschneider@bdblaw.com
20     On behalf of the Defendants.
21   
22   
23   
24   
25   
0003
 1                      I N D E X
 2   DEPONENT:                              PAGE
 3   ROBERT YOUNG, M.D.
 4    Examination by Mr. Mishkind              4
 5   
 6   
 7   
 8   
 9   
10                   E X H I B I T S
11   NO.   DESCRIPTION                      PAGE
12    1    Curriculum Vitae of Robert          4
           Young, M.D.
13   
      2    Report of Dr. Robert Young          4
14         sent to Mr. Riemenschneider
           4/14/08
15   
      3    Report of Dr. Robert Young          4
16         sent to Mr. Riemenschneider
           4/20/08
17   
18    (Exhibits attached to original transcript)
19   
20   
21   
22   
23   
24   
25   
0004
 1                    P R O C E E D I N G S
 2                (Exhibit Nos. 1-3 premarked for
 3       identification)
 4                        * * * * * * *
 5                     ROBERT YOUNG, M.D.,
 6                  having been satisfactorily
 7                  identified and duly sworn,
 8                   testifies as follows to
 9       EXAMINATION BY MR. MISHKIND:
10   Q.  Good afternoon, Doctor.  How are you?
11   A.  Good afternoon.
12   Q.  Would you please state your name for the
13       record?
14   A.  Robert Henry Young.
15   Q.  Dr. Young, my name is Howard Mishkind.  Nice
16       to meet you, sir.
17   A.  Nice to meet you.
18   Q.  You have been identified as one of the experts
19       on behalf of Ohio Permanente, and that is why
20       I've traveled to Boston to meet you and to ask
21       you some questions relative to the opinions
22       that you hold.  Okay?
23   A.  Yes.
24   Q.  I know you've had your deposition taken
25       before, but you and I have never met before,
0005
 1       have we?
 2   A.  Correct, we have not.
 3   Q.  Let me just give you a couple requests at the
 4       beginning.  Hopefully it will help us move
 5       along during the course of the deposition.
 6                If my questioning is confusing in any
 7       respect, tell me and I will attempt to
 8       rephrase the question.  Don't answer it unless
 9       you're certain that you are following what I'm
10       trying to get across.  Okay?
11   A.  Fine.
12   Q.  I will wait until you have finished an answer.
13       I will not interrupt you.  If you feel that
14       you need to explain something, I won't limit
15       you to simply providing me with a yes or a no.
16       Okay?
17   A.  Fine.
18   Q.  Also, if I'm in the middle of one of my
19       questions, wait until I'm done just so that we
20       don't have an overlap.
21   A.  Fine.
22   Q.  Thank you, sir.  Before the deposition
23       started, I had a chance to review your file,
24       and I see that you have a number of medical
25       records concerning Lillian Dailey as well as
0006
 1       the autopsy from the coroner's office.  You
 2       have portions of the Cleveland Clinic records.
 3       And I believe you have Dr. McLellan's report
 4       and his deposition.
 5   A.  Correct.
 6   Q.  And I'm just sort of summarizing what you have
 7       there because there's a number of volumes, but
 8       these are medical records of Lillian Dailey.
 9       Correct?
10   A.  Yes.
11   Q.  Aside from the medical records of Lillian, the
12       autopsy, Dr. McLellan's report and his
13       deposition and the slides that you referenced
14       in your reports, do you have any other
15       material today?
16   A.  Well, I mean, in here are just one or two
17       letters on the Buckingham Doolittle Burroughs
18       letterhead, you know, saying, Enclosed are...,
19       stuff like that.  And it's all available
20       through Lancet.
21   Q.  Sure.
22   A.  An e-mail.  So basically nothing other than
23       procedural paperwork, I guess you could say.
24   Q.  Very good.  And I see that it had to do with
25       scheduling and things of that nature.  But
0007
 1       substantively, there is no additional material
 2       here that relates to the Lillian Dailey case.
 3       Correct?
 4   A.  Correct.
 5   Q.  There are two experts that have been
 6       identified by the defense, Dr. Jamieson down
 7       in Cincinnati and Dr. -- I believe his name is
 8       Barter in Maryland.  Have you seen either of
 9       their reports?
10   A.  I don't believe so.
11   Q.  Aside from perhaps e-mails that may have been
12       sent to you concerning the scheduling of this
13       deposition, some of which -- some of them
14       being printed out here, is there anything that
15       you did not bring to this -- to your office
16       with you today that relates to Lillian
17       Dailey's case?
18   A.  To the absolute best of my knowledge, no.
19   Q.  You did that very well even though you had the
20       candy bar in your mouth.
21                Doctor, I have marked for
22       identification several items.  And I'd like to
23       take care of quick housekeeping.
24                Exhibit 1 I have marked, which is
25       your CV.  The copy that I have is 72 pages.
0008
 1       Would you take a look and see whether this is
 2       current?  And if it isn't -- well, let's
 3       figure out first whether it's current.
 4                (Witness reviews CV)
 5   A.  It's current in any fair material way, meaning
 6       by that, one or two of these papers, as it
 7       says here, have actually appeared.  But, I
 8       mean, none of them has any relevance to the
 9       matter at hand.
10                One doesn't update one's CV every
11       week or every month, otherwise it would just
12       be kind of silly.  So it is a recent
13       curriculum vitae which represents my career to
14       date in a fair way.
15   Q.  Thank you, sir.  You'd be surprised.  A lot of
16       people do update their CVs on a weekly basis.
17                But how recent would you say this was
18       in terms of when you --
19   A.  A few months ago, I guess.
20   Q.  Fair enough.  Okay.  Exhibit 1 and -- I'm
21       sorry, Exhibit 2 and Exhibit 3, are these the
22       two reports that you wrote to
23       Mr. Riemenschneider relative to your review in
24       this case?
25   A.  Yes, I know there were two because we reviewed
0009
 1       them beforehand, Mr. Riemenschneider and
 2       myself, and these look like they.
 3   Q.  Have you written any other letters reflecting
 4       any opinions in this case?
 5   A.  No.
 6   Q.  Do those two reports essentially summarize the
 7       opinions that you have as it relates to this
 8       particular case?
 9   A.  Yes, I think they do.
10   Q.  Thank you, sir.
11                You know Dr. McLellan?
12   A.  Yes.
13   Q.  How do you know him, sir?
14   A.  Well, I just know he's a well-known
15       gynecologic oncologist.  I mean, I know him
16       professionally, let's put it that way.  I
17       mean, I know who he is.  If he walked by here
18       today, I don't know that I'd necessarily
19       recognize him facially.
20                He's one of a number gynecologic
21       oncologists whose names are known to
22       pathologists.  That's the simplest way I can
23       put it.
24   Q.  That's fine.  The reason I ask that is because
25       he acknowledged knowing you in the deposition
0010
 1       and, in fact, had indicated that at times he's
 2       sent some slides to your office for a second
 3       opinion.
 4                But I think what you just told me is
 5       you don't know -- you don't recall ever having
 6       actually met him in person?
 7   A.  Well, I think I have.  I mean, I'm just saying
 8       I wouldn't recognize him if he walked in here,
 9       I'm pretty sure, because it's been at least
10       several years.
11   Q.  Fair enough.  In terms of the opinions that
12       you have in this case that we're going to talk
13       about --
14   A.  Mm-hmm.
15   Q.  -- was there any material that you asked for
16       but were not able to be provided?
17   A.  I do not believe so.
18   Q.  Did you maintain any notes as you were
19       reviewing the case?
20   A.  I do not believe so.
21   Q.  Do you create notes either on the computer or
22       handwritten when you review a case?
23   A.  I use the computer as little as possible,
24       number one.  I'm rather old-fashioned and not
25       computer savvy to more than a minimal degree.
0011
 1       I mean, there would be situations in which I
 2       would make notes.  I don't remember making
 3       notes in this case.  And certainly when I
 4       pulled the material, I did not find any notes.
 5   Q.  Fair enough.
 6   A.  And I'm not hiding anything from you.
 7   Q.  I'm not suggesting that you are.
 8   A.  No, I know you're not.  But I'm just saying, I
 9       wouldn't never make notes.  I do not believe I
10       made notes in this case.
11   Q.  Okay.  That's all I can ask.  Sometimes people
12       make notes.  They may make them on a portion
13       of a record, they may make them on a portion
14       of the autopsy or write them on a pad of
15       paper.
16                But in this particular case, your
17       review subsequently led to the preparation of
18       your two reports and you have no -- nothing in
19       a draft form or a written form that would --
20   A.  There is nothing I have not pulled for you
21       because I've done this sort of thing before.
22   Q.  Sure.  I know that.
23   A.  And there could conceivably, in contrast to my
24       memory, somewhere in here be something that
25       says 17 slides labeled, which is just my way
0012
 1       of recording the number of slides.  If there
 2       are, I didn't come across them today, let's
 3       put it that way.
 4   Q.  Fair enough.  Did you review any literature
 5       for purposes of this case?
 6   A.  No.
 7   Q.  Did you review any literature for purposes of
 8       preparing either of your reports?
 9   A.  No.
10   Q.  Did you review any literature for purposes of
11       preparing for the deposition today?
12   A.  No.
13   Q.  Is there any literature that you are relying
14       upon to support any of the opinions that you
15       have as it relates to uterine sarcoma?  And
16       obviously that's what we're here to talk
17       about.
18   A.  I'm relying on my knowledge of uterine
19       sarcomas.
20   Q.  But no specific journal article that would --
21   A.  I'm relying on the established body of
22       knowledge which exists which incorporates my
23       experience with many sarcomas of the uterus
24       and no specific -- no specific paper.  I have
25       not looked at a single paper specifically
0013
 1       related to this matter during anytime I've
 2       been working on this matter.
 3   Q.  Okay.  And for that matter, is it fair to say
 4       that it's unnecessary for you to refer to any
 5       literature on this particular subject matter
 6       in order to confirm the opinions that you hold
 7       in this case?
 8   A.  That is correct.
 9   Q.  I know you are the editor of a number of
10       books, including the Atlas of Clinical
11       Oncology on uterine cancer.
12   A.  Mm-hmm.
13   Q.  Correct?
14   A.  Yes.
15   Q.  And there is a chapter in that book by
16       Dr. Krasner and Dr. -- K-r-a-s-n-e-r -- and
17       Dr. Seeden (phonetic) or Dr. Seiden --
18   A.  Seiden.
19   Q.  S-e-i-d-e-n -- on treatment of uterine
20       sarcomas.
21                Do you find that chapter in the book
22       that you are an editor of to be a reasonably
23       reliable resource as it relates to
24       evidence-based writings on the treatment of
25       uterine sarcoma?
0014
 1   A.  I have no reason to think that chapter is any
 2       more authoritative than countless other
 3       chapters.
 4   Q.  Okay.  Is it any less authoritative in your
 5       opinion?
 6   A.  I haven't reviewed it to compare it with other
 7       contributions.
 8   Q.  Certainly you wouldn't want to have a chapter
 9       in one of your own books that you considered
10       to be unreliable in terms of its content,
11       would you?
12   A.  No.  But, I mean, there are countless chapters
13       on topics like this.
14   Q.  Sure.
15   A.  But I do not -- even though I'm an editor of
16       the book, I'm not arrogant enough to hold out
17       that that particular chapter in that book is
18       necessarily any better than countless others.
19       I hope it's not much inferior to many others,
20       but I have no to reason to think it's
21       necessarily superior.
22                And I'm sure like most writings,
23       there are -- including my own writings, there
24       are imperfections of grammar and comments that
25       I might or might not disagree with and so on
0015
 1       and so forth.
 2   Q.  If we put aside grammar issues -- and I'm not
 3       suggesting that you would be so arrogant to
 4       suggest that there might be articles that are
 5       more or less reliable -- but do you know of
 6       any other chapters in this particular book on
 7       the treatment of uterine sarcomas other than
 8       Chapter 16?
 9   A.  I haven't reviewed the table of contents
10       lately, but I assume there's probably only
11       one.  But, I mean, I haven't reviewed the
12       table of contents.
13   Q.  Fair enough.  Have you reviewed at any time
14       Dr. McLellan's writings on uterine sarcomas?
15   A.  No.
16   Q.  Are you aware of the fact that he is a
17       gynecological oncologist?
18   A.  Yes.
19   Q.  And are you aware of the fact that he has
20       written, even though you may not have reviewed
21       his material, that he has written on uterine
22       sarcomas?
23   A.  I would not be surprised that he has written
24       on the topic.
25   Q.  But for purposes, the very least of this case,
0016
 1       you have not reviewed his literature.
 2       Correct?
 3   A.  Correct.
 4   Q.  Okay.  Doctor, to save some time, in your CV
 5       are there any publications that you have
 6       authored or coauthored that relate to the
 7       topic of uterine sarcomas?
 8   A.  Yes.
 9   Q.  Could we go off the record for a second and
10       just have you perhaps --
11   A.  Did you say the treatment of uterine sarcomas?
12   Q.  Well, you don't treat uterine sarcomas.
13   A.  No, I know.  So what was your question?  Was
14       it on the treatment of uterine sarcomas or --
15   Q.  Well, on the topic of uterine sarcomas.
16   A.  Oh, the topic, yeah.  On the topic, yes.  On
17       the pathology of, yes.
18   Q.  I mean, you've never treated or managed a
19       patient's uterine sarcoma from a clinical
20       standpoint.  Correct?  That's not what you do
21       as a pathologist.  True?
22   A.  I mean, as a pathologist, you make decisions
23       that impact on treatment by one's pathologic
24       diagnoses.  And there probably have been
25       situations in which my comments on the
0017
 1       pathology have had a direct bearing on the
 2       treatment.
 3                But I have not been the one who has
 4       specifically made the decision that a patient
 5       should be treated one way or the other.
 6       That's the simplest way I can put it.
 7   Q.  And that's fine.  And in terms of the
 8       management of a patient that has uterine
 9       sarcoma, you wouldn't be the specialist that
10       would be providing the medical management of
11       that patient.  Correct?
12   A.  Correct.
13   Q.  And you wouldn't be the one that would be
14       providing the surgical management of that
15       patient.  Correct?  The surgical in terms of
16       doing an operation.
17   A.  Correct.
18   Q.  That's outside your area of practice.  True?
19   A.  Correct.
20   Q.  Okay.  Now, what I'd like to do is hand you
21       the CV.  And topics that relate to uterine
22       sarcoma, if you could perhaps with that red
23       pen -- we'll go off the record for as long as
24       necessary.
25                (Witness reviews CV)
0018
 1                (Discussion off the record)
 2   Q.  Doctor, thank you for taking the time to look
 3       through.
 4   A.  Okay.
 5   Q.  And before we went back on the record, you
 6       indicated that in the right-hand margin with a
 7       red pen you've checked off three publications
 8       that would touch on the topic of uterine
 9       sarcomas.  Is that correct?
10   A.  Yes.
11   Q.  Okay.  Without taking the time to look through
12       this, have you given presentations on the
13       topic of uterine sarcomas?
14   A.  Yes.  As part of a discussion of uterine
15       tumors in general.
16   Q.  Okay.  And are they reflected in your
17       presentations?
18   A.  I don't --
19   Q.  The topic of uterine sarcomas as a subset of
20       uterine --
21   A.  Yeah, that's why I said yes.
22   Q.  Okay.  So the three that you checked, do they
23       encompass or the three that you checked were
24       they just solely related exclusively to
25       uterine sarcomas?
0019
 1   A.  Well, you first of all asked me about
 2       papers --
 3   Q.  Right.
 4   A.  -- and then you asked me about presentations,
 5       which of course are different topics.  So
 6       you're confusing the issue here.
 7   Q.  I'm not attempting to confuse you.  That's
 8       why, remember I said, if I do confuse
 9       something, you tell me.  Every once in a
10       while, I state something that's confusing.
11                There are presentations in addition
12       to your publications?
13   A.  Yes.  As I said a minute ago, yes.
14   Q.  Okay.  Actually, it was less than a minute
15       ago, but who's counting.
16   A.  It seems longer.
17   Q.  All right.  Time flies when you're not having
18       fun.  Right?
19   A.  Yeah.
20   Q.  When's the last time that you gave a
21       presentation that had the topic of uterine
22       sarcomas included in the presentation?
23   A.  I don't remember exactly.  Probably within the
24       last two years.
25   Q.  Do you use a PowerPoint when you do your
0020
 1       presentation?
 2   A.  Yes.
 3   Q.  Do you maintain the PowerPoint on your
 4       computer that has the material on uterine
 5       sarcomas?
 6   A.  No.
 7   Q.  Where would that material be once you --
 8   A.  It would be in our department computer system.
 9   Q.  Okay.  If we look at your CV under Seminars,
10       Courses and Presentations --
11   A.  Uh-huh.
12   Q.  -- would that be -- I just want to try to get
13       to the area of your CV that reflects
14       presentations.
15   A.  Okay.  So the specific question is?  I
16       don't -- I mean, I give countless
17       presentations to residents and other people.
18       I mean, I don't -- you know, something has to
19       be of a certain substance to be reflected in
20       my curriculum vitae, otherwise it would use up
21       a few more trees.
22   Q.  Here's my question, just to make it real
23       simple.
24   A.  Like any educator, I give many talks to
25       trainees about pathology.  It would not be the
0021
 1       custom to put those in one's curriculum vitae.
 2   Q.  Okay.  Doctor, let me state my question again.
 3       In looking at the CV -- and obviously you know
 4       this document far better than I do, and I will
 5       tell you it's very impressive and I'm not
 6       saying that, other than to state a truism.
 7                Can you, by looking at your CV, tell
 8       me when would the last presentation that you
 9       would have given that would have included, not
10       necessarily been exclusive to but included the
11       topic of uterine sarcomas?
12   A.  No.
13   Q.  All right.  But you do use PowerPoints.  It's
14       not in this office, but it is available
15       somewhere in the department.  If one were to
16       request the production of that PowerPoint,
17       would it be something that you could do?
18   A.  Of course, it's humanly possible.  I can't see
19       what point there would be in it other than a
20       total waste of everyone's time.  It would be
21       humanly possible, yes.
22   Q.  Okay.  Well, let me be the judge of whether or
23       not it's totally a waste of time.  It's
24       something that if requested you could do
25       without too much of a problem?
0022
 1   A.  Well, I'd have to ask Mr. Riemenschneider if
 2       it seems to be -- and whether the hospital
 3       would allow me or not, I don't know.
 4   Q.  Okay.  All right.  I will follow up with
 5       Mr. Riemenschneider with a request.  But what
 6       you're telling me is that assuming he doesn't
 7       handcuff you and say, Don't produce --
 8   A.  Well, I can't release hospital material
 9       without first -- and he doesn't have control
10       of the hospital material.
11                MR. RIEMENSCHNEIDER:  I don't have
12       the authority on that.
13   Q.  All right.  Well, assuming that there isn't
14       any --
15   A.  You might have to subpoena the hospital.  It's
16       up to you if you want to go to that waste of
17       time.
18   Q.  Doctor, let's not talk over each other.
19       Remember, I had mentioned that at --
20   A.  Well, you're bringing in material which is
21       over and above anything I've ever been asked
22       before.
23   Q.  I appreciate that, and I may be asking
24       something of you that you've never been asked
25       before.  I doubt it.  But even if I have
0023
 1       been -- Doctor, let me finish, please.  Don't
 2       interrupt me.  Let me finish.  I won't
 3       interrupt you when you're talking.
 4                If it's possible to produce the
 5       PowerPoints without some restriction from the
 6       hospital and Mr. Riemenschneider indicates
 7       that it's okay, will you do so?
 8   A.  I'll have to consider it.
 9   Q.  You'll have to consider it?
10   A.  Yeah.
11   Q.  Okay.  And what would be the circumstances
12       under which you wouldn't produce it?
13   A.  If it's not relevant, then I can't do it.
14   Q.  Doctor, with all due respect, the relevancy is
15       not to be determined by you in the course of
16       this litigation.  If you have a PowerPoint
17       that has something on uterine sarcoma,
18       actually it would ultimately be the judge that
19       would determine whether it's relevant.
20   A.  Well, you can take it to the judge then.
21   Q.  Okay.  But I would ask you to make it
22       available so that we have it, the lawyers have
23       it in our possession.  Will you do that?
24                MR. RIEMENSCHNEIDER:  Objection.  Go
25       ahead.
0024
 1   A.  I can't answer that.  I'm not gonna answer the
 2       question.
 3   Q.  Why?
 4   A.  Because it's an unreasonable request.  And I
 5       am a reasonable person, not an unreasonable
 6       person.
 7   Q.  Doctor, and I am a reasonable person, too.
 8       I'm just asking --
 9   A.  Well, you're not being reasonable right now.
10   Q.  Doctor, please don't interrupt me.
11   A.  No, I --
12   Q.  Doctor, please don't interrupt me.  Let me
13       finish.
14   A.  You interrupted me.
15   Q.  Doctor, let me finish.  Under what
16       circumstance would it not be -- would you not
17       produce a PowerPoint on uterine sarcoma?
18       Because you would determine that it wasn't
19       reasonable -- that it wasn't relevant?
20   A.  I will produce it on the request of a judge.
21   Q.  Okay.  Absent an order by a judge on uterine
22       sarcoma, what you're telling me is that you
23       will not produce it?
24   A.  I do not have the authority to, at your
25       request, produce what I consider protected
0025
 1       material of the Massachusetts General
 2       Hospital/myself.
 3   Q.  Doctor, in the material that you had on top of
 4       the records was the -- I think a page or two
 5       of the pathology from the Cleveland Clinic
 6       when Lillian had her hysterectomy.  And there
 7       are a couple lines -- a couple sections that
 8       are underlined.  Is that your underlining?
 9   A.  Presumably so.
10   Q.  It's in red ink.  Would you just read the
11       words that are underlined?
12   A.  One word -- or two words say "subserosal
13       leiomyoma."  The next say "unremarkable
14       white-tan firm whorled tissue."
15   Q.  Was there any significance to your underlining
16       those words as it relates to this case?
17   A.  I can only assume I was at the time just
18       reflecting on the fact that there was a mass
19       of a much larger size that obviously equates
20       to the sarcoma of the patient, and that that
21       separate mass equates to the small leiomyoma
22       also itemized in the pathology report.
23   Q.  I just didn't see any other areas in the
24       pathology report that were underlined, and I
25       just wanted to know whether there was a reason
0026
 1       that you would underline those words as
 2       opposed to any others.
 3   A.  I just told you what would be the reasonable
 4       reason.
 5   Q.  Okay.  And that's what you believe to be the
 6       reason that you underlined it?
 7   A.  Correct.
 8   Q.  Okay.  Thanks.
 9                MR. MISHKIND:  Off the record.
10                (Discussion off the record)
11   Q.  Doctor, I want to ask you -- before we get
12       into the substance of the opinions that you
13       hold in this case, I want to ask you about
14       your prior testifying experience.  I know that
15       you have given deposition testimony
16       previously.
17                Can you tell me whether you have ever
18       testified in a deposition or at trial in a
19       case involving a uterine sarcoma?
20   A.  I think I did once.
21   Q.  When was that, sir?
22   A.  I don't remember exactly because it's not
23       committed to memory obviously.  Sometime
24       within the last ten years.
25   Q.  Was that a Massachusetts case or was that
0027
 1       outside of the state --
 2   A.  I don't remember.
 3   Q.  Do you remember the name of the patient?
 4   A.  No.
 5   Q.  Do you remember the name of the hospital?
 6   A.  No.
 7   Q.  Do you remember the name of the lawyer that
 8       you were working for?
 9   A.  No.
10   Q.  Do you remember whether it was a plaintiff or
11       a defense case?
12   A.  It was a defense case as I remember it.
13   Q.  And other than that case that you recall about
14       ten years ago, have you ever --
15   A.  No, I didn't say about ten years ago, I said
16       within the last ten years.
17   Q.  Within the last ten years, I'm sorry.  Within
18       the last ten years, excluding that case, have
19       you been an expert by way of deposition or
20       trial testimony in any uterine sarcoma cases
21       other than that case and now the Dailey case?
22   A.  That's the only other one I remember.
23   Q.  Okay.  What about writing reports in any other
24       cases besides this case and being involved in
25       that other case?
0028
 1   A.  If there are others, I don't remember them.
 2   Q.  Have you ever been involved in any case in
 3       federal court where you had to provide what's
 4       known as a Rule 26 disclosure statement?
 5   A.  I don't know what a Rule 26 disclosure
 6       statement is.
 7   Q.  Where you had to identify the lawyers that
 8       you've worked for, the names of the cases and
 9       anything along those lines.
10   A.  That has not happened.
11   Q.  Okay.  Are you still doing approximately
12       85 percent in terms of your expert review and
13       testimony on behalf of the defense?
14   A.  Where did you get that figure?
15   Q.  From a previous deposition.
16   A.  I don't keep a tally, but that sounds a
17       ballpark -- that figure sounds roughly
18       correct.  So I guess that's why I gave it
19       before.  But it could have been 90/10 or
20       85/15.
21   Q.  How many cases have you reviewed -- or how
22       many cases are you serving as an expert
23       currently in the year 2009 that you have open,
24       if you will?
25   A.  Gee, it's hard to say because, I mean, some of
0029
 1       these things you got a letter or some
 2       communication in year one and it drags on
 3       forever as they tend to do.  My best estimate
 4       might be that there are about ten cases that
 5       one could reasonably consider active where my
 6       name is associated with them.
 7   Q.  When is the last time that you testified in a
 8       courtroom?
 9   A.  I mean, I don't remember most of this stuff.
10       I don't remember exactly.  I'm sure within the
11       last two years.  I literally just don't
12       remember.  It's happened on a number of
13       occasions.
14                When the last time was?  I know I was
15       down at Plymouth, it seems about two years
16       ago, maybe three years ago.  I don't -- almost
17       certainly not within the last six months,
18       otherwise I hope I'd remember.  So other than
19       that, I can't really say.
20   Q.  When's the last time you gave a deposition,
21       sir?
22   A.  Oh, probably within the last six months.
23   Q.  In terms of the course of a year, on average,
24       how many times are you asked to give a
25       deposition and supportive opinions in a
0030
 1       med-mal case?
 2   A.  I would say about four times a year.
 3   Q.  You've worked on cases in the state of Ohio at
 4       the request of attorneys before this case.
 5       True?
 6   A.  If you've looked that up and that's what the
 7       record shows, so be it.  I don't remember.  I
 8       don't keep a tally of state for state and so
 9       forth.
10   Q.  You don't remember testifying in a case just
11       the end of 2007 on behalf of a law firm in
12       Cleveland?
13   A.  Again, I mean, it may or may not surprise you
14       because I'm not a lawyer.  You're a lawyer,
15       I'm a doctor looking at cases of patients.  I
16       don't remember what state these people are
17       from.  I mean, lawyers fly in and, I mean, I
18       don't -- I'm a very busy person looking at
19       thousands of cases.  So where lawyers are from
20       is one of the furthest things from my mind.
21   Q.  Doctor, I --
22   A.  I highly likely have looked at the case in as
23       much as you seem to have investigated the
24       matter, but under oath I am telling you I do
25       not specifically remember that there was a
0031
 1       case from Ohio.  But there most likely was a
 2       case from Ohio.
 3   Q.  Do you remember being cross-examined over the
 4       telephone by Chris Melino in the case of
 5       Ramirez v. Lakewood OB/GYN where an Attorney
 6       Mingus was present with you?
 7   A.  Those names ring a bell, yeah.
 8   Q.  And you were working for Attorney Tom Kilbane
 9       from the Reminger law firm.  Does that ring a
10       bell at all to you?
11   A.  The first two names ring a bell.  The name of
12       Mr. Kilbane does not ring a bell.
13   Q.  Fair enough.  That particular case, Ramirez v.
14       Lakewood OB/GYN, your deposition was taken
15       over the phone by Mr. Melino.  Mr. Mingus was
16       here.  You had talked with Mr. Kilbane before
17       the deposition.  Do you remember whether you
18       ever testified at trial in that case in
19       Cleveland?
20   A.  If I barely remember the case, I'm sure I'm
21       not gonna remember whether I testified at
22       trial.  So I don't believe I testified at
23       trial.
24   Q.  Can you tell me whether you have ever
25       testified in the state of Ohio on behalf of a
0032
 1       patient or the family of a patient that was
 2       bringing a medical negligence case?
 3   A.  You mean I went to Ohio and testified?
 4   Q.  We'll start it that way, sir.
 5   A.  I don't remember it.
 6   Q.  And since the great state of Ohio is
 7       memorable, I presume that if you've come to
 8       the state of Ohio and testified in a
 9       courtroom, you would probably remember at
10       least in the last --
11   A.  Oh, I don't know about that.
12   Q.  I remember when I come to Boston.
13   A.  Well, you're a lawyer.  I'm not a lawyer.
14       You're practicing your primary profession.
15       This isn't my primary profession.
16   Q.  Well, that's okay.  You don't do this that
17       often and obviously you have a good mind.  So
18       I would presume that if you've traveled to
19       Ohio and testified in a case on behalf of a
20       patient in a courtroom in the last, say, five,
21       ten, 15 years, you would remember that.
22   A.  Well, I don't know why you feel you have the
23       right to characterize my memory, but that's
24       between you and your maker.  If I say I don't
25       remember something, it's because I don't
0033
 1       remember it.
 2   Q.  Well, heaven knows I can't read your mind.
 3   A.  I hope not.
 4   Q.  But as you sit here right now, no cases come
 5       to mind.  Is that a fair statement?
 6   A.  I do not remember testifying in the state of
 7       Ohio.  That doesn't mean I haven't testified
 8       in the state of Ohio.  It means I don't
 9       remember.
10   Q.  All right.  As far as the review of all of the
11       records --
12   A.  Mm-hmm.
13   Q.  -- in this particular case, do you remember
14       the fore history on Lillian Dailey in terms of
15       her obstetrical history or is that not
16       something that you've committed to your
17       memory?
18   A.  I do not have that committed to my memory, nor
19       do I think you have, nor do I believe you
20       think I have it committed to my memory.
21   Q.  What I think and what I know might be two
22       different things so I just ask you, Doctor,
23       whether --
24   A.  I just answered it.
25   Q.  Okay.  Doctor, as far as your work with
0034
 1       Mr. Riemenschneider, have you had the pleasure
 2       of meeting this young man before today?
 3   A.  Yes.
 4   Q.  On how many occasions, sir?
 5   A.  At least once.
 6   Q.  And were you serving as an expert at the
 7       request of Mr. Riemenschneider?
 8   A.  Well, I think it was this case, if I'm not
 9       mistaken.  If we worked on another case, he
10       can remind me.
11   Q.  Well, you've met Mr. Riemenschneider at least
12       one other time.  It may have been -- you
13       believe it was relative to this case?
14   A.  Yes.
15   Q.  Is it your testimony that this would be the
16       only case that you have worked at the request
17       of Mr. Riemenschneider?
18   A.  I believe so, but he's right beside you so...
19   Q.  I know, but he's not under oath, you are.  And
20       you know the rules.
21   A.  I'm sure he's an honest man, whether he's
22       under oath or not.
23   Q.  He is an honest man.  But unfortunately,
24       you're the one that's under oath and has to
25       answer these questions.  Those are the rules.
0035
 1   A.  I don't remember whether we've worked before
 2       or not.
 3   Q.  Okay.  What about Buckingham Doolittle, have
 4       you reviewed --
 5   A.  I don't remember.
 6   Q.  Besides the Reminger firm, Reminger &
 7       Reminger, which is a defense firm in
 8       Cleveland, and Buckingham Doolittle, do you
 9       recall having been involved in any other cases
10       at the request of any other defense firms in
11       the Cleveland area?
12   A.  I do not recall.
13   Q.  Okay.  You charge -- I believe it's $600 an
14       hour for depositions.  Correct?
15   A.  Correct.
16   Q.  And is that a minimum of two hours?
17   A.  No, it's $600 per hour.
18   Q.  Okay.  So if I take an hour, that's what it's
19       gonna cost me?
20   A.  Yes.
21   Q.  Okay.  And for purposes of coming to
22       Cleveland, what is your charge for portal to
23       portal?  And I know that you don't charge for
24       sleeping in hotels and things of that nature,
25       so I won't have you tell me about that.  But
0036
 1       what is your charge to come to Cleveland for
 2       the trial?
 3   A.  $500 per hour and $600 for any time in the
 4       witness box.
 5   Q.  Explain to me -- when you say $500 per hour,
 6       so once you leave your office --
 7   A.  Time spent on the case that is involved in the
 8       act of going to Cleveland, discussing the case
 9       when there, you know.  What I have found to be
10       customary practice as best I can figure it
11       out.
12   Q.  Do you maintain a web site?
13   A.  No.
14   Q.  Okay.  Do you advertise your services?
15   A.  Absolutely not.
16   Q.  Have you ever advertised your services?
17   A.  Absolutely not.  I don't want to be fired.
18   Q.  There's a rule here at the hospital that if
19       you advertised you'd be fired?
20   A.  Well, it's not something I would ever remotely
21       consider doing.  Let me put it that way.
22   Q.  I'm just curious as to why you say you'd be
23       fired if --
24   A.  Well, I think it would be frowned upon.
25   Q.  Okay.  But you don't know that for a fact,
0037
 1       though?
 2   A.  Well, I'm pretty sure it would be frowned
 3       upon.
 4   Q.  But you don't know whether you --
 5   A.  I'm not gonna test it, let's put it that way.
 6   Q.  But you don't know whether you would be
 7       fired --
 8   A.  Of course, I don't.  That was a sarcastic
 9       remark.  Actually, there was a reason I made
10       the sarcastic remark.
11   Q.  And, Doctor, with all due respect, there
12       really is no reason nor necessity for sarcasm
13       during the deposition.
14   A.  Well, you know, if you're asked a bizarre
15       question, then sarcasm is sometimes hard to
16       avoid.
17   Q.  Well, try to avoid it.  My questions are not
18       intended to be bizarre, and I'm not --
19   A.  I'm sure you're not intending to, but one or
20       two of them have been.
21   Q.  Well, whether they have been or not, try to
22       avoid sarcasm --
23   A.  Well, if you could try and avoid the bizarre
24       questions, I'll try and avoid the sarcasm.
25   Q.  Doctor, you understand I'm relying upon the
0038
 1       answers that you give under oath here today.
 2       You understand that, don't you?
 3   A.  Of course, I do.
 4   Q.  Okay.  And when we go to trial, I'm going to
 5       rely upon the answers.  That's why when you
 6       say that you'd be fired if you advertised, I
 7       wanted to give you an opportunity --
 8   A.  Well, I mean, do you --
 9   Q.  Doctor, excuse me.  Just a second.
10   A.  Do you remotely think people here advertise
11       their services for this type of matter?  Do
12       you remotely think that to be the case?
13   Q.  Doctor, I'm paying for your time.  I'm the one
14       that gets to ask the questions.  I don't know
15       whether any experts here at the hospital
16       advertise their services.  They may or they
17       may not.
18                I'm just asking you personally
19       whether you believe that if you advertised, as
20       you stated before, that you would be fired.
21       And I think what we can agree is that your
22       statement may have been an exaggeration
23       because you don't know whether --
24   A.  Well, it may or may not have been an
25       exaggeration.  It's certainly not gonna be a
0039
 1       parameter I shall ever test by being stupid
 2       enough to advertise my services.  Let's put it
 3       that way.
 4   Q.  Fair enough.  Doctor, tell me, what percentage
 5       of your pathology practice is reviewing GYN
 6       slides?
 7   A.  About 70 percent.
 8   Q.  And on a day-to-day basis -- first of all, you
 9       are an anatomic pathologist.  Is that correct?
10   A.  Yes.
11   Q.  Board-certified --
12   A.  Yes.
13   Q.  -- in anatomic pathology?
14   A.  Yes.
15   Q.  Are you board-certified in any other areas of
16       pathology, sir?
17   A.  No.
18   Q.  Are you still on the editorial board for the
19       American Journal of Surgical Pathology?
20   A.  Yes.
21   Q.  And I believe you receive a number of
22       journals.  You don't subscribe to them, they
23       come to you just because of your position.
24       Correct?  Or do you, in fact, subscribe to
25       certain journals?
0040
 1   A.  I don't think I subscribe to any at the
 2       moment.  I get some because I'm on the
 3       editorial board.
 4   Q.  I asked you about Dr. McLellan earlier.  Do
 5       you consider him an area -- an area -- an
 6       expert in the area of the diagnosis and
 7       treatment of uterine sarcomas?
 8                MR. RIEMENSCHNEIDER:  Objection.  Go
 9       ahead.
10   A.  I don't consider -- what's your definition of
11       an expert?
12   Q.  Someone that is qualified by their knowledge,
13       training and experience and has worked in the
14       area in treating medically and/or surgically
15       uterine sarcomas.  Do you consider him to at
16       least have the requisite knowledge, training,
17       experience to treat uterine sarcomas?
18                MR. RIEMENSCHNEIDER:  Objection.  Go
19       ahead.
20   A.  I mean, I know him to be a trained gynecologic
21       oncologist.  And I have no reason to criticize
22       his credentials or him as a physician.  But
23       it's not my position to characterize him as an
24       expert or anything else.  I mean, he is what
25       he is.  And you know what he is as well as I
0041
 1       do.
 2   Q.  Doctor, I understand that he is what he is.
 3       Do you consider him from your readings and
 4       from your knowledge to be well-respected in
 5       the area of gynecological oncology?
 6   A.  I don't know enough about his opinions overall
 7       to know whether I'd agree with -- what
 8       percentage of them I would agree with.  But he
 9       is a gynecologic oncologist in good standing
10       to the best of my knowledge.  Other than that,
11       it's not appropriate for me to characterize
12       his professional standards.
13   Q.  Okay.  You don't feel it's appropriate for you
14       to do that?
15   A.  No, I don't know much about him.
16   Q.  Okay.  That's fine.
17   A.  I told you, I wouldn't recognize him if he
18       walked in here.
19   Q.  Got it.  Doctor, do you agree that
20       leiomyosarcomas tend to spread -- tend not to
21       spread through the lymphatic system as often
22       as other uterine cancers?
23   A.  No, I don't believe.  I don't -- there is one
24       form of uterine sarcoma where there's a
25       particular propensity to spread through the
0042
 1       lymphatic vessels.  But leiomyosarcoma spreads
 2       through the vessels pretty much as frequently
 3       as most other cancers of the uterus.
 4   Q.  What ways -- first of all, in your opinion,
 5       did Lillian Dailey have a leiomyosarcoma?
 6   A.  No.
 7   Q.  What did she have?
 8   A.  She had a high-grade endometrial sarcoma.
 9   Q.  And how does that differentiate itself from a
10       leiomyosarcoma?
11   A.  It doesn't show smooth muscle differentiation.
12   Q.  I'm sorry.  You referred to it as a
13       high-grade --
14   A.  -- endometrial sarcoma.
15   Q.  Is that the same as an endometrial stromal
16       sarcoma?
17   A.  No.
18   Q.  How many different types of uterine sarcomas
19       are there?
20   A.  Leiomyosarcoma, endometrial stromal sarcoma,
21       endometrial sarcoma not otherwise specified,
22       rhabdomyosarcoma, and every other sarcoma
23       known to exist in the human body.
24   Q.  Is the type of uterine sarcoma that Lillian
25       had, is it a faster growing cancer than a
0043
 1       leiomyosarcoma?
 2   A.  Her tumor had particularly -- had particular
 3       propensity to involve the vascular channels to
 4       a degree that I've rarely seen as strikingly
 5       before.  And in that manner, it was different
 6       from the usual leiomyosarcoma one sees in the
 7       uterus.
 8   Q.  Can you answer my question, though, in terms
 9       of its aggressiveness as it relates to its
10       growth?  Was this type of uterine cancer more
11       or less aggressive than what you typically see
12       in a leiomyosarcoma?
13   A.  More than what you'd typically see.
14   Q.  Okay.  Is this type of uterine sarcoma that
15       you believe she had associated with a poorer
16       prognosis than a leiomyosarcoma?  If you know,
17       sir.
18   A.  Stage for stage?
19   Q.  Yes.
20   A.  You mean when metastatic to the lung is the
21       outcome different or --
22   Q.  Well, yeah, if it's diagnosed at Stage I,
23       comparing that to a leiomyosarcoma, is there
24       any difference in your knowledge of the
25       prognosis Stage I to Stage II to Stage III to
0044
 1       Stage IV?
 2   A.  I don't think one can honestly answer that
 3       question on an objective manner, on
 4       evidence-based medicine which we're meant to
 5       use in these circumstances.
 6   Q.  Are you called upon in your practice as a
 7       pathologist to stage cancers, uterine cancers?
 8   A.  Well, we provide the information upon which
 9       clinicians can stage the patient.
10   Q.  But in the actual practice, though, is it a
11       fair statement that while you provide input to
12       them, it's the GYN oncologist or the GYN
13       surgeons that do the actual staging at the
14       time of -- or based upon the information
15       provided?
16   A.  And other information.
17   Q.  Which would include?
18   A.  Evidence on scans as to whether it's spreading
19       to the lungs, clinical observations that the
20       pathologist may not be privy to.
21   Q.  Doctor, I'm sorry, just because I -- the name
22       of the uterine sarcoma that you believe
23       Lillian had?
24   A.  High-grade endometrial sarcoma.
25   Q.  And the distinguishing characteristics that
0045
 1       distinguish the high-grade endometrial sarcoma
 2       from a leiomyosarcoma, what are the classic
 3       differences, either --
 4   A.  Lack of smooth muscle differentiation in this
 5       tumor.
 6   Q.  And is that what you see under the microscopic
 7       examination or is that something that --
 8   A.  You don't see it.
 9   Q.  Well, obviously.  But is that what -- you see
10       the lack of the smooth muscle
11       differentiation --
12   A.  Yes.
13   Q.  -- when you look at the slides?
14   A.  Yes.
15   Q.  Is there any other differentiation between
16       high-grade endometrial sarcoma and the
17       leiomyosarcoma?
18   A.  Well, the growth characteristics were somewhat
19       different than you would usually expect in a
20       leiomyosarcoma.
21   Q.  Tell me what --
22   A.  Well, this tumor tends to grow in big
23       tongue-like foci, at least to some degree in
24       some of the slides.
25   Q.  And that's what you saw when you looked at the
0046
 1       slides.  Were these the slides from the
 2       surgery or the slides from the autopsy?
 3   A.  Well, mainly I'm talking about the
 4       hysterectomy because that's where you see the
 5       tumor in the uterus or around the uterus.
 6   Q.  Okay.  I think you indicated in your report --
 7       and correct me if I'm wrong -- that you
 8       believe that the tumor that she had back in
 9       November of '04 on ultrasound proved
10       ultimately to be the sarcoma?
11   A.  Yes.
12   Q.  Are you able to tell me to a reasonable degree
13       of probability what stage that sarcoma was
14       back in November of 2004?
15   A.  In my opinion, it was without doubt higher
16       than Stage I.
17   Q.  Are you able to be any more specific than
18       that?
19   A.  It was probably Stage III.
20   Q.  And by that, what involvement would there have
21       been to have caused it to be Stage III back in
22       November of '04?
23   A.  Spread of tumor beyond the pelvis.
24   Q.  Okay.  What clinical evidence was there back
25       in November of '04 that would prove
0047
 1       scientifically that the uterine sarcoma, this
 2       high-grade endometrial sarcoma was greater
 3       than a Stage I back in November of 2004?
 4   A.  I can't prove it because the tissues weren't
 5       evaluated.  But many medical judgments are
 6       based on sound knowledge of what one knows
 7       about tumor behavior.
 8                You know, I mean, if someone has a
 9       brain -- if someone has a lung cancer and --
10       well, I mean, medicine is an art as well as a
11       science.  One makes valid, sound judgments
12       based on many parameters other than objective
13       documentary evidence.  I assume you're well
14       aware of that.
15                And in a case like this when one
16       knows what a tumor looks like under the
17       microscope, as we certainly do as we sit here
18       today, I have not the slightest shadow of a
19       doubt that this tumor, which was a 12 cm
20       mass -- or was it 14 cm?  12 or 14 -- in the
21       fall of 2004 and had the characteristics we
22       know it to have had, I find it impossible to
23       believe it had not spread beyond the uterus at
24       that time.
25   Q.  And I appreciate that's your opinion.  I'm
0048
 1       just asking whether there was any clinical
 2       evidence by way of diagnostic studies or
 3       examination back in November of 2004 that you
 4       can point to to support that opinion?
 5   A.  I mean, the relevant studies weren't done.
 6   Q.  Okay.  What about in May of 2005, what stage
 7       was the high-grade endometrial sarcoma at in
 8       your professional opinion?
 9   A.  Well, obviously not -- obviously, no less than
10       Stage III if I thought it was Stage III more
11       likely than not in November of 2004.  Whether
12       at that stage there were already some tumor
13       cells in the lung that would make it a Stage
14       IV, I think one could -- one could debate.  I
15       don't think we'll ever know the answer to
16       that.
17   Q.  Is it speculative to say whether or not in May
18       there was any lung involvement?
19   A.  Well, I don't think it's speculation.  There's
20       a certain pejorative connotation to it as if
21       you're just kind of throwing stuff out into
22       the -- one could debate the matter, and I
23       think no one could be certain one way or the
24       other.  At least I couldn't be certain one way
25       or the other.
0049
 1   Q.  Fair enough.  And you know from a legal
 2       perspective when we talk about speculation, we
 3       talk about something -- or when we talk about
 4       opinions in terms of whether something likely
 5       existed, it's greater than 50 percent likely.
 6       Can you state greater than 50 percent
 7       likelihood that there was lung involvement as
 8       of May 2005?
 9   A.  Remind me of the date of the -- the autopsy
10       was '06, wasn't it?
11   Q.  Correct.
12   A.  I think actually -- I think probably more
13       likely than not she did.
14   Q.  And other than knowing what you saw at the
15       time of the hysterectomy from the pathology
16       and knowing what you saw at the time of the
17       autopsy --
18   A.  Mm-hmm.
19   Q.  -- are you using a doubling time to correlate
20       your opinions back to when there was
21       metastasis to the lungs?
22   A.  No, I'm just -- I'm just using the time that
23       we know elapsed, the whole time frame of the
24       disease, which basically is no greater than a
25       two-year window.  I think we'd agree on that.
0050
 1                And knowing the extent of the tumor
 2       at autopsy, to me, it is medical -- very --
 3       more likely than not using appropriate medical
 4       judgment that a tumor that had the involvement
 5       we saw at autopsy in '06, in '05 probably had
 6       some microscopic tumor cells in the lungs.
 7   Q.  Are you able to tell me whether they were
 8       microscopic or macroscopic back in May and
 9       June of '05?
10   A.  Well, if they weren't -- I mean, I've
11       forgotten what, if any, imaging studies were
12       done of the lung at that time.  I mean, if it
13       wasn't detected -- if studies were done and it
14       wasn't detected, I don't have that committed
15       to memory.  So, I mean, if it wasn't
16       documented on any imaging studies, then it
17       would of course have to be microscopic.
18                But tumor has to reach quite a
19       measurable mass before it really gets picked
20       up on imaging studies, even with the
21       sophisticated stuff we can do now.
22   Q.  These high-grade endometrial sarcomas or the
23       leiomyosarcomas are aggressive cancers, are
24       they not?
25   A.  Well, I don't know why you say "or
0051
 1       leiomyosarcoma" because she didn't have
 2       leiomyosarcoma.  So I would rather we don't
 3       bring into the discussion of this case things
 4       the patient didn't have.
 5   Q.  Well, is a leiomyosarcoma an aggressive
 6       uterine sarcoma?
 7   A.  Well, when it's a grade 3, it is.  There are
 8       some that are less aggressive.  There's three
 9       grades of leiomyosarcoma, of course.  Whereas,
10       this tumor is just the one beast, high-grade
11       endometrial sarcoma.  And of course this term
12       "high-grade" pretty much says it all.
13   Q.  And you believe she had this high-grade
14       endometrial sarcoma even at the time she had
15       the negative endometrial biopsy?
16   A.  I think anyone who says she didn't would be on
17       very slippery ground because I don't see how
18       else it would expand the mass.
19   Q.  Do you believe that the high-grade endometrial
20       sarcoma was outside of the uterus at the time
21       that she had the endometrial biopsy?
22   A.  I've already said I think it had spread beyond
23       the uterus, yes.
24   Q.  Okay.  Can you explain to me why a negative
25       endometrial biopsy would not have detected a
0052
 1       high-grade endometrial sarcoma that had spread
 2       outside of the uterine wall?
 3   A.  There's no surprise on that.  I don't know if
 4       your facial expression is imparting surprise
 5       at that.  But as I'm sure you're well aware,
 6       the endometrial biopsy just captures the
 7       lining of the uterus, which of course is just
 8       one small part of a globular organ of much
 9       greater size than the aggregate size of the
10       endometrium.
11                So it's no surprise whatsoever that a
12       endometrial biopsy would not detect something
13       in the wall of the uterus such as most
14       sarcomas involve the wall.
15   Q.  Are uterine sarcomas uncommon?
16   A.  Yes.
17   Q.  What's the incidence of uterine sarcoma?
18   A.  I don't know what the frequency of the
19       population that has them is.  I mean, per
20       100,000?  Per million?  I don't know the
21       figure.  They're mercifully very rare.
22   Q.  Can we agree that there was an ultrasound done
23       in November of 2004 on Lillian Dailey?
24   A.  I believe there was, yeah.
25   Q.  And do you recall there being a further
0053
 1       ultrasound done in May or June of 2005?
 2   A.  I don't have the timing of these various
 3       procedures committed to memory, but I'll be
 4       quite happy to have you just -- I have no
 5       reason to disbelieve you, but I'm just saying
 6       I don't have when this was done and when that
 7       was done committed to memory.  So it's not
 8       fair to anyone involved to expect me to have
 9       all these timelines remembered so --
10   Q.  I'm not asking you, nor am I trying to be
11       unfair to you.  I think you have some reports
12       that have outlined the time period, and I
13       presume you've reviewed this case in
14       preparation for today's deposition.
15   A.  Yes, but I haven't reviewed -- I mean, I
16       didn't commit to memory whether there was --
17       when an ultrasound was done because I'm -- my
18       primary role here is to comment on the nature
19       of her disease, the causation aspects of the
20       disease.
21                And I'm happy to comment on any
22       specific thing, but I'm just saying I don't
23       remember that on the 2nd of May, or whatever,
24       she had such and such or whatever.
25   Q.  Doctor, I'm not suggesting and don't
0054
 1       misrepresent that I'm suggesting that it was
 2       the 2nd of May.  May or June -- there were two
 3       ultrasounds done, one in '04 and one in '05.
 4       Correct?
 5   A.  I believe so, yeah.
 6   Q.  Okay.  And there was an increase in the size
 7       of the uterus between those two.  Correct?
 8   A.  Yes.  Hardly surprising.
 9   Q.  And hardly surprising based upon the fact that
10       she had a high-grade endometrial sarcoma.
11       Correct?
12   A.  Correct.
13   Q.  And certainly your role is not to provide
14       standard of care opinions as it relates to the
15       medical management by the doctors at Kaiser.
16       True?
17   A.  Correct.
18   Q.  If the uterine sarcoma had been diagnosed in
19       November of 2004, can we agree that it would
20       have been smaller than if it had been
21       diagnosed in May of 2005?
22   A.  Somewhat smaller.  Although, of course, it was
23       obviously already very sizable in November of
24       2004.  But all tumors grow.  So obviously at a
25       later time, they're gonna be bigger than at
0055
 1       the earlier time.  That's common sense.
 2   Q.  And certainly on a timeline basis, do you know
 3       when her uterine sarcoma went from a Stage I
 4       to a Stage II?  Do you have an opinion?  And
 5       from what you've told me so far, I gather you
 6       feel that it was beyond Stage I in November of
 7       2004.  True?
 8   A.  Yes.
 9   Q.  Can you tell me based upon your review of this
10       case and based upon your knowledge, training
11       and experience when you believe her uterine
12       sarcoma no longer was a Stage I?
13   A.  Some appreciable period of time before
14       November of 2004 because it was a 12 cm mass
15       in November of 2004.  And, again, given the
16       characteristics we know the tumor to have, you
17       know, I think probably this tumor when it was
18       still relatively small probably had spread
19       locally in the pelvis because it's an
20       exceedingly striking tumor.
21   Q.  So you believe that even when it was small and
22       sizewise a Stage I, you believe it had already
23       metastasized into the pelvis?
24   A.  No, not -- not when it was -- when it was
25       Stage I, by definition it hadn't metastasized.
0056
 1   Q.  Okay.
 2   A.  I mean, I'm saying that when it was measurably
 3       smaller than what it was in November of 2004,
 4       it had at that prior time -- some measurable
 5       time before that it had become a Stage II
 6       neoplasm.
 7   Q.  Can you tell me approximately when before
 8       November of 2004, in your opinion, knowing the
 9       growth, knowing what you saw in this case and
10       the evidence that you're applying, when it was
11       before November of 2004 that it was no longer
12       a Stage I?
13   A.  I would say some months before.
14   Q.  Months as in still 2004?
15   A.  That it was -- maybe even late 2003.
16   Q.  Is it possible that it was even back into
17       2002?  Or is it your opinion more likely --
18   A.  I mean, at a certain point it gets hard to be
19       sure.  I mean, obviously none of us are
20       soothsayers here.  But, I mean, that's why you
21       don't talk about days.  I mean, only an idiot
22       would try and obviously get a day.
23                But you talk in general frames of
24       time.  That's why I say a measurable number of
25       months.  Six months, nine months, something
0057
 1       like that, I think more likely than not it had
 2       spread.  It was greater than a Stage I.  That
 3       amount of time before November of 2004, given
 4       that in 2004 it was already a 12 cm mass.  And
 5       that's a large tumor.
 6   Q.  Okay.  And I'm not trying to pin you down to
 7       days, and I won't do that because I don't want
 8       to be accused of being an idiot.  But are you
 9       comfortable with the six to nine month
10       approximate range at which point it no longer
11       was a Stage I and had probably become a Stage
12       II before November of 2004?
13   A.  Yes.
14   Q.  Thank you, sir.  Do you have experience in
15       treating patients that have high-grade
16       endometrial sarcomas that are fortunate enough
17       to be diagnosed at a Stage I cancer?
18   A.  I haven't treated patients with this
19       condition.
20   Q.  Would you defer to a GYN oncologist in terms
21       of the treatment if someone were fortunate
22       enough to be diagnosed at a Stage I?
23   A.  Again, I don't treat patients.  I don't know
24       what more I can say other than that.
25   Q.  Well, who would be the specialty that would
0058
 1       treat a high-grade endometrial sarcoma if a
 2       patient were fortunate enough to be diagnosed
 3       at a Stage I?
 4   A.  Well, I mean, it would depend.  It could be a
 5       gynecologic gynecologist -- a gynecologic
 6       oncologist.  Well, a gynecologic oncologist
 7       would be the usual discipline that would be
 8       involved.  But, I mean, it could be a
 9       radiation therapist, I suppose, conceivably as
10       a candidate.
11   Q.  But on a day-to-day basis since perhaps even
12       your residency, you haven't had clinical
13       experience in terms of managing medically or
14       surgically a patient once they're diagnosed
15       with a uterine sarcoma.  Correct?
16   A.  Well, pathologists don't treat patients.  I
17       don't know how much more blunt I can put it.
18   Q.  Well, and I just want to make it clear on this
19       record what you've just said.
20                Now, as far as the prognosis for a
21       patient that has a Stage I uterine sarcoma,
22       that has what you believe to be a high-grade
23       endometrial sarcoma, do you know what the
24       five-year survival and cure rate is for that
25       type of cancer?
0059
 1   A.  It is known to be a highly malignant tumor of
 2       the uterus.  I don't as I sit here without
 3       reference to a book have a specific figure I
 4       would give under oath.  I just know as a fact
 5       of general oncologic knowledge it's a bad
 6       tumor.  So therefore, the five-year survival
 7       figures have got to be on the worrisome side
 8       even for a Stage I tumor.
 9   Q.  Do you know whether all patients with a
10       Stage I high-grade endometrial sarcoma die?
11   A.  Well, never say "never" and never say "all."
12       I find it impossible to -- well, there are few
13       situations as absolute as saying "all" or
14       "none," as I'm sure you would agree.
15   Q.  If Lillian had been diagnosed at a point in
16       time where she had a Stage I uterine sarcoma,
17       are you able to say more likely than not she
18       would have died?
19   A.  I think the likelihood of any human being with
20       this particular tumor surviving is slim and
21       none.
22   Q.  Even diagnosed at a Stage I?
23   A.  Yes.
24   Q.  And is the potential for survival with this
25       particular type of tumor, the length of
0060
 1       survival, is it greater if it's diagnosed at a
 2       Stage I, albeit a bad prognosis, as opposed to
 3       a Stage III or a Stage IV?
 4   A.  Well, I mean, I don't think anyone would
 5       dispute that the survival of Stage I tumors is
 6       better, on average, than Stage III or Stage IV
 7       tumors.  You're gonna have a lot of difficulty
 8       getting many good studies of this particular
 9       tumor stage for stage because it's such an
10       unusual tumor.
11   Q.  Do you have an opinion knowing what you saw
12       microscopically, the gross description, the
13       medical history leading up to her death, if
14       she had been fortunate enough to have been
15       diagnosed at a Stage I, even though you
16       believe that she had a dismal prognosis, do
17       you have an opinion as to how many years she
18       likely would have lived if it had been
19       diagnosed at Stage I with appropriate and
20       standard surgical management?
21   A.  I think the characteristics of this particular
22       uterine sarcoma, which is probably as
23       aggressive as I have ever seen -- and I've
24       seen large numbers of aggressive tumors -- I
25       think the likelihood of anyone surviving this
0061
 1       tumor is very low.
 2   Q.  But I'm talking about in terms of time period,
 3       if it was diagnosed at Stage I and treated.
 4       Even though it wouldn't change its
 5       characteristics, how long would she have
 6       likely lived?
 7   A.  Not very long.
 8   Q.  Which is what?
 9   A.  A year or two.
10   Q.  Well, she lived from November until January
11       without any treatment -- from November of '04
12       until basically January -- December of '05,
13       January of '06 without any treatment.
14       Correct?
15   A.  Yeah.
16   Q.  I guess my question is, if this was as
17       aggressive of a cancer and she had no
18       treatment between November of '04, how did she
19       live that long --
20   A.  I mean, I don't know why you're surprised at
21       this.  Bad cancers need to -- I mean, the
22       human body is rather resilient, mercifully.
23       You know, the human body needs a certain tumor
24       burden before, you know, things get, you know,
25       close to the end stage.
0062
 1                So, I mean, people can live for a
 2       measurable period of time with a lot of quite
 3       significant tumor in their body and then just
 4       suddenly, of course, it kind of overwhelms
 5       them, you might say.  So nothing surprises me
 6       about the particular time course of this
 7       particular case in the way that you seem to be
 8       implying.
 9   Q.  Doctor, I'm not implying anything, and don't
10       read anything.  I'm just asking questions.
11   A.  Well, you're making comments.
12   Q.  Doctor, I'm not making comments.  I'm asking
13       questions and I'm getting answers from you.
14       That's what I'm doing here today.  That's the
15       purpose of a deposition.
16                Do you know whether this particular
17       cancer, this uterine sarcoma, whether or not
18       there are any classic signs or symptoms that a
19       patient demonstrates that gives the clinician
20       an indication that he -- that he or she --
21       that she has a uterine sarcoma?
22   A.  There are no -- vis-a-vis other tumors?
23   Q.  Well, let me be more specific.  Pain.  Is pain
24       a presenting symptom that you expect to see
25       with a uterine sarcoma?
0063
 1                MR. RIEMENSCHNEIDER:  Objection.  Go
 2       ahead.
 3   A.  You know, you're getting into the realm here
 4       of clinical symptomatology.  As we've already
 5       discussed, I don't treat patients.  So
 6       therefore, I don't really have a great sense
 7       of how these patients present to their
 8       doctors.
 9   Q.  So you would defer on that issue?
10   A.  I would defer on that, yes.
11   Q.  Thank you, sir.  You said the tumor load --
12       when do you believe that -- well, define for
13       me, just so I'm clear, when you talk about a
14       tumor load in a uterine sarcoma, what are we
15       talking about?
16                MR. RIEMENSCHNEIDER:  Objection.
17   A.  I'm not gonna define tumor load.  You were the
18       one who said you were asking questions.  You
19       made a statement.  You did not -- you made a
20       statement that because she did, you know,
21       quote/unquote, relatively well or something
22       like that for a measurable period of time,
23       that seemed to be out of -- that seemed to
24       contradict my characterization of this tumor
25       as a very aggressive tumor that would kill the
0064
 1       patient, quote, within a year or two.
 2                And your statement, which was not a
 3       question, I indicated was not at variance with
 4       the survival the patient has had because you
 5       can live for quite a long time, meaning by
 6       that a year or so, with a surprising amount of
 7       tumor in the body and actually be quite well.
 8                I've seen it in my private life.
 9       People that I know have a lot of tumor,
10       they're actually walking around and seemingly
11       quite well and then boom, you know, within a
12       short period of time -- obviously, at a
13       certain point one's body just sort of, you
14       know, gets too much.
15   Q.  And that's tumor load, is it not?
16   A.  It's the amount of tumor, whatever happens to
17       the metabolism in the body and so on and so
18       forth.  Certain things that people even don't
19       know sometimes what ultimately plays into
20       patients dying of cancer.  There's still a lot
21       of unknowns, actually.
22                But I'm saying, it is not -- there is
23       not a contradiction between my
24       characterization of the nature and virulence
25       of the tumor and her seemingly doing not too
0065
 1       bad for a period of time.  That's what I was
 2       trying to say.
 3   Q.  Doctor, I'm very sorry that you interpret my
 4       questions.
 5                MR. MISHKIND:  Would you read back
 6       the question that I asked the doctor?  So
 7       perhaps I can get the answer to the very first
 8       question about tumor load.
 9                (Previous question read by reporter)
10   Q.  Now, can you answer my question, Doctor?
11   A.  Well, tumor load is just a general term used
12       for -- it's like a rainy day.  Tumor load.
13       You know, she has a heavy tumor load, meaning
14       she has a lot of tumor.  There's no definition
15       of that unless you have any problem with those
16       common English words.
17   Q.  You're the doctor, I'm the lawyer.  When you
18       said "tumor load," I wanted to find out --
19   A.  You don't understand the words?
20                MR. RIEMENSCHNEIDER:  I actually
21       think he said tumor burden before.
22                MR. MISHKIND:  Okay.  Tumor burden,
23       you're correct.
24   Q.  What is tumor burden?
25   A.  Tumor is tumor and burden is a burden.  You're
0066
 1       familiar with the word "burden," I take it?
 2   Q.  Doctor, I am.  But as a doctor --
 3   A.  There's no dictionary -- I mean, there's no
 4       definition of "tumor burden" other than what
 5       those good Anglo-Saxon words mean, which I
 6       can't really explain other than saying tumor
 7       burden is just -- it's just terminology that's
 8       used like saying a sick person.
 9   Q.  Okay.  In your letter, Doctor, you mention
10       that Dr. McLellan felt that all patients with
11       leiomyosarcomas require hysterectomies.  Do
12       you recall that?
13   A.  I don't remember that I said that, but I'll
14       stand corrected if I did say it.  Which letter
15       are you talking about?
16   Q.  The second letter.
17   A.  Which sentence?
18   Q.  "His comments would indicate that every
19       patient with leiomyomas would have to undergo
20       hysterectomy because of the risk of sarcoma
21       which is known to be exceedingly small, albeit
22       existent."  And then you go on to say,
23       "Hysterectomy is a significant procedure not
24       without its own risks."
25   A.  Well, that's a completely separate -- that is
0067
 1       not how you characterized my statement in your
 2       question.
 3   Q.  In terms of the risks --
 4   A.  You used the word "leiomyosarcoma" when I used
 5       the word "leiomyoma."  There's a big
 6       difference.
 7   Q.  Okay.  Let me ask you this, Doctor, so that we
 8       can perhaps move along here.  When you talk
 9       about the risks of performing a hysterectomy,
10       certainly you would defer to a surgeon in
11       terms of evaluating the risk-benefit analysis
12       of whether or not a patient should undergo a
13       hysterectomy.  True?
14   A.  Yes, I'd be very surprised if anybody didn't
15       think there was some risk associated with
16       hysterectomies --
17   Q.  That's not my question.
18   A.  -- knowing patients who have died of
19       hysterectomies.
20   Q.  Yes, and there's also benefits of undergoing a
21       hysterectomy if -- it's a
22       risk-benefit analysis.  Correct?
23   A.  Of course certain patients benefit from it,
24       yes.
25   Q.  And in terms of the risk-benefit analysis as
0068
 1       to whether a patient in a given situation who
 2       has leiomyomas that are enlarging, that has
 3       abnormal uterine bleeding, that is at a
 4       particular age, you would defer to a surgeon
 5       in terms of discussing with that patient
 6       whether or not she should undergo a
 7       hysterectomy.  Correct?
 8   A.  I mean -- patients other than this patient,
 9       you mean?
10   Q.  I'm talking in general, Doctor.  A patient
11       that has abnormal uterine bleeding, that has
12       increasing leiomyomas, that is at a certain
13       age, you would certainly defer to a GYN or a
14       GYN oncologist in terms of a discussion as to
15       whether or not the patient is an appropriate
16       candidate for a hysterectomy.  Correct?
17   A.  I mean, I don't make decisions on treatment.
18       So, I mean, I don't know what I can say other
19       than that.
20   Q.  It would be outside your --
21   A.  I would hope patients -- I would hope for the
22       benefit of womankind that the countless
23       thousands of patients who have leiomyomas are
24       not being submitted to hysterectomy even
25       with -- too frequently given the hazards of
0069
 1       the operation.  Let me put it that way.
 2   Q.  Well, Doctor, let me put it a different way
 3       and see if you can answer the question
 4       directly.  You would defer in terms of the
 5       risk-benefit analysis discussion on the
 6       appropriateness of a hysterectomy, you would
 7       defer to a GYN oncologist or a GYN that does
 8       hysterectomies.  Correct?
 9   A.  Look, I have my opinion on the matters.  Even
10       a reader of the lay press knows there's been
11       criticism of gynecologists for doing too many
12       hysterectomies.  You know that as well as I
13       do.
14   Q.  Doctor, you're not an expert --
15   A.  But an individual -- I as a practicing
16       pathologist am not in the position of making
17       decisions.  It doesn't mean I don't as an
18       expert on gynecologic pathology have opinions
19       on the matter.
20   Q.  But you're not an expert in the area of
21       gynecological surgery.  True?  You may have
22       opinions, but you're not an expert, you don't
23       hold yourself out as an expert in that area.
24       True?
25   A.  You mean the technique of doing the operation?
0070
 1   Q.  Yes.  You don't hold yourself out as an expert
 2       in that area.
 3   A.  On the technique of doing the operation?
 4   Q.  That's what I said, yes.
 5   A.  No, I do not consider myself an expert on the
 6       technique of doing the operation.  Of course
 7       not.
 8   Q.  And did you ever have a residency in GYN
 9       oncology?
10   A.  No.
11   Q.  Did you ever have a residency in surgical
12       gynecology?
13   A.  No.
14   Q.  And have you ever practiced as a GYN
15       oncologist or a practicing gynecologist?
16   A.  I have never practiced as a gynecologist, a
17       gynecologic oncologist, but my daily practice
18       includes numerous requests for opinions --
19   Q.  That's not my question, Doctor.
20   A.  I'm answering the question.
21   Q.  No.  My question was whether or not --
22   A.  Who gets to answer the questions, me or you?
23                MR. MISHKIND:  Read back the question
24       to the doctor so that perhaps he can answer
25       the question put to him.
0071
 1                (Previous question read by reporter)
 2   A.  Are you going to let me answer the question?
 3   Q.  I would hope, Doctor, now with the question
 4       read back to you that you would answer that
 5       question.
 6   A.  That means that when I speak and stop you then
 7       speak.  Is that correct?
 8   Q.  Do you hear me talking, Doctor, other than
 9       responding?
10   A.  I'm asking you to say, Yes, Dr. Young, I
11       agree, that is how we will proceed.
12   Q.  Doctor --
13   A.  You're trying to make a characterization that
14       I do not in my practice have any knowledge of
15       or impact in treatment decisions whereas that
16       is at variance with what my life is.
17   Q.  Doctor, you are reading into my questions.
18       They're very simple questions as to whether or
19       not you practice as a GYN oncologist or a
20       clinical GYN, and I think --
21   A.  What's your definition of practicing as a GYN
22       oncologist?
23   Q.  Doctor, if you're not going to answer my
24       question, I'm going to move on to another one
25       because you don't want to answer the
0072
 1       questions.
 2   A.  No, you want to -- I wish it to be on record
 3       as a fact that I know a lot about gynecologic
 4       tumors and that many patients' treatment
 5       decisions have had significant impact because
 6       what I have said.
 7   Q.  So you'll be taking the stand in the
 8       courthouse in Cleveland and testifying as an
 9       expert --
10   A.  No.
11   Q.  -- on providing --
12   A.  That is not what I said.  It is just a fact
13       that the pathologist is one of the caregivers
14       in the decision-making that goes into the
15       treatment of patients with gynecologic
16       cancers.  It is a team.
17   Q.  What would you have done, Doctor, if this
18       patient had a diagnosis of Stage I high-grade
19       endometrial uterine sarcoma and there was no
20       evidence at the time of the diagnosis that
21       there was any invasion outside of the uterus?
22       What would you have recommended in terms of
23       the course of treatment for the patient?
24                MR. RIEMENSCHNEIDER:  Objection.  Go
25       ahead.
0073
 1   A.  Again, we don't recommend per se the treatment
 2       decisions.  But what we say and conversations
 3       we may have and opinions we may give are
 4       factored in by the ultimate decision maker,
 5       the gynecologist or gynecologic oncologist, on
 6       what he or she will do in a given case.
 7   Q.  All right, Doctor.  I'm going to go through
 8       some areas that hopefully we can cover, and
 9       then I want to ask you a few questions about
10       the slides and then we'll be done.
11   A.  Mm-hmm.
12   Q.  Even though you don't have committed to memory
13       the May and June time period, are you at least
14       familiar enough that in May or June that there
15       were no clinical symptoms that the patient had
16       that would be consistent with the uterine
17       sarcoma invading outside of the uterine wall?
18                MR. RIEMENSCHNEIDER:  Objection.  Go
19       ahead.
20   A.  That has no bearing on whether she did or did
21       not have tumor outside the uterine wall.
22   Q.  I'm not asking you whether it had bearing or
23       not.  My question was very simple.  Was there
24       any clinical symptoms that would be consistent
25       with a patient having a uterine sarcoma
0074
 1       invading outside the uterine wall based upon
 2       your review in this case?
 3   A.  There were no symptoms to the best of my
 4       knowledge, but that has no great weight in the
 5       matter.
 6   Q.  I understand it has no great weight and no
 7       great bearing in your opinion.  But the answer
 8       to the question is that there aren't any
 9       clinical symptoms that were demonstrated at
10       that time by diagnostic study or by complaints
11       that would be consistent with the uterine
12       sarcoma being outside of the uterine wall.
13       True?
14   A.  Yes.
15   Q.  Thank you.  If a hysterectomy had been
16       performed in June of 2005 after the patient
17       had the negative endometrial biopsy but
18       continued to have uterine bleeding, her age,
19       and in a clinical decision, the clinical
20       judgment of the physicians at that time a
21       hysterectomy would have been indicated.  And I
22       just want you to assume that hypothetically.
23       Okay?
24   A.  Mm-hmm.
25   Q.  In June, she has an increasing uterine mass,
0075
 1       she has a negative endometrial biopsy, her
 2       age, her bleeding, the findings, if
 3       hypothetically the decision was to do a
 4       hysterectomy at that time, do you have an
 5       opinion as to whether or not a hysterectomy
 6       and the pathology from the hysterectomy would
 7       have indicated the stage of her cancer?
 8   A.  I mean, it would have shown what it was at
 9       that time, yes.
10   Q.  Okay.  And between, let's say, June and
11       December, roughly six months or so --
12   A.  Mm-hmm.
13   Q.  -- did the cancer continue to grow?
14   A.  Presumably so.  Sure, yes.
15   Q.  When you say "presumably so" --
16   A.  Yes, it did.  We know it did, obviously.
17   Q.  Okay.  And you're not using doubling times or
18       physics to quantify the growth pattern, are
19       you?
20   A.  No.
21   Q.  Based upon being a pathologist and being
22       familiar with this, can you explain to me how
23       much growth you believe to a reasonable degree
24       of probability occurred between June and when
25       the hysterectomy was performed?
0076
 1   A.  I mean, how do you characterize "how much
 2       growth"?  I mean, in pounds or something or --
 3   Q.  Well, define it in whatever terms you as an
 4       anatomic pathologist uses.
 5   A.  There would have been no material impact on
 6       her prognosis if a hysterectomy had been
 7       performed in June 2005.
 8   Q.  That wasn't my question.  I'm asking you how
 9       much --
10   A.  Therefore, the tumor would have -- which I
11       already have stated -- would have spread
12       beyond the uterus given a 12 cm mass of this
13       nature in November 2004.  We've already -- and
14       I'm very happy to say this again under oath in
15       the courtroom -- we've already -- I have
16       already -- and I'm very confident in my
17       opinion that it was higher than Stage I in
18       November 2004.
19                The incredible extent of spread when
20       it was actually removed indicates that a mere
21       six months before that it would have also have
22       shown very significant extrauterine disease of
23       a nature that would have no -- her prognosis
24       would have been no different.  There would
25       have been somewhat less tumor because tumor
0077
 1       grows over six months.  But it would have had
 2       no material effect on the matter.
 3   Q.  Why did she develop a pulmonary sarcoma?
 4   A.  She didn't develop a pulmonary sarcoma.  Her
 5       sarcoma spread to the pulmonary system because
 6       that's where tumors with this degree of
 7       vascular invasion tend to spread, to the
 8       lungs.
 9   Q.  And can you say whether there would have been
10       a sarcoma embolism to the lungs if she had had
11       a hysterectomy in May or June of 2005?
12   A.  Yes, there would have been.
13   Q.  From the family's standpoint, if you were
14       sitting down talking with the family about the
15       difference between November of 2004 -- let me
16       finish, Doctor, please.  You're shaking your
17       head -- between November of 2004 when you
18       believe she had evidence of the uterine
19       sarcoma and the ultimate diagnosis which was
20       made in December of 2005, what would you
21       explain to the family in terms of their child
22       and the husband and the mother in terms of
23       what impact a delay of whatever period of time
24       occurred in diagnosing her cancer, what impact
25       it had on her morbidity and her mortality?
0078
 1   A.  I would look them straight in the eye and tell
 2       them that I was most sorry that their mother,
 3       wife, whatever the relationship is to the
 4       individual I was looking at, I would tell them
 5       I'm most sorry -- as someone who has had
 6       several family members with cancer -- that
 7       their mother was afflicted with this terrible
 8       cancer.  I would tell them that I have vast
 9       experience with cancers of the gynecologic
10       system.  I have rarely seen once as virulent
11       as their mother/wife had.
12                But that the only thing -- the only
13       solace I can bring to them is to tell them
14       that I am absolutely confident that if the
15       tumor -- if the uterus had been removed in May
16       or June of 2005, unfortunate -- the only
17       solace I can bring is that it would have made
18       no difference.
19                Now, whether that brings them any
20       solace or not, I cannot say.  But I would tell
21       them that with as clear a conscience as I'll
22       ever have on any matter of this kind.
23   Q.  How many patients have you under the
24       microscope confirmed a diagnosis of uterine
25       sarcoma of any type?
0079
 1   A.  Probably several hundred.
 2   Q.  And do you know whether any of those patients
 3       have survived?
 4   A.  I mean, some of the ones with low-grade tumors
 5       I assume have survived.
 6   Q.  What about high-grade?
 7   A.  A small -- well, if they've -- I don't
 8       remember hardly any case like this
 9       parenthetically.  I'm not just saying that.  I
10       mean, I don't remember many cases like this.
11       In fact, I have not seen a uterine sarcoma as
12       virulent as this.  Period.
13                How many of them have -- the
14       high-grade sarcomas?
15   Q.  Yes, sir.
16   A.  I don't know a figure.  I mean, there's
17       occasional survivors of high-grade sarcomas if
18       they're Stage I with no invasion of the
19       bloodstream, in contrast to what we see in
20       this patient; confined to the uterus, in
21       contrast to what we see in this patient.
22   Q.  In terms of -- I just lost my train of
23       thought.  I'm starting to suffer from
24       "whatchamacallits" disease.
25                The spread of the uterine sarcoma,
0080
 1       there are a number of ways that it can
 2       metastasize.  Correct?
 3   A.  Well, it's mainly through the bloodstream.
 4   Q.  So it's usually a vascular --
 5   A.  Well, the lymphatic vessels or the blood
 6       vessels.
 7   Q.  And if it spreads through the blood vessels,
 8       are there any blood tests that will typically
 9       show metastatic spread?
10   A.  Blood tests?
11   Q.  Yes.
12   A.  No.  If I'm understanding your use of the word
13       "blood test" correctly, the answer is no.
14   Q.  What would you have to do to the blood to see
15       evidence of spread?
16   A.  There's no known modality for detecting the
17       spread that I'm aware of.
18   Q.  Okay.  Have you seen cases where uterine
19       sarcomas have been misdiagnosed?
20                MR. RIEMENSCHNEIDER:  Objection.
21       From a pathologist's view?
22                MR. MISHKIND:  Yes.  Of course.  I
23       mean, even though he's talked about his
24       knowledge.  I mean, from a --
25   Q.  As a pathologist, have you seen --
0081
 1   A.  Yeah.  I mean, sometimes telling whether a
 2       smooth muscle tumor is benign or malignant
 3       isn't easy even for me.
 4                So it depends what you mean by
 5       "misdiagnosed."  There are honest differences
 6       of opinion sometimes as to whether a tumor is
 7       benign or malignant.  You know, I debate it in
 8       my own mind sometimes.  I mean, not in a case
 9       like this, of course, where it's so obvious.
10                But, I mean, there are cases where it
11       can be difficult.  And human beings are human
12       beings.  Of course, there are occasional
13       errors in judgment.
14   Q.  And certainly if a doctor's error in judgment
15       amounts to negligence, you would certainly
16       agree that a physician should be held
17       responsible if their error in judgment was
18       negligent?
19                MR. RIEMENSCHNEIDER:  Objection.
20   A.  That's what the whole malpractice situation
21       is, to cover the situation.  I mean, I don't
22       know what you're -- I don't know what you're
23       saying.  I mean, that's why we have a
24       malpractice system.  I mean, that's why the
25       system is the one we have.  I mean -- you
0082
 1       know.
 2   Q.  Do you know why uterine sarcoma was not
 3       suspected sooner than November or December of
 4       2004 in this case?
 5                MR. RIEMENSCHNEIDER:  Objection.
 6   A.  I can't read the minds of the people looking
 7       after the patient.  I mean, I just -- I would
 8       only assume that in as much as the vast
 9       majority of lesions like this in the uterus
10       mercifully turn out to be not sarcomas, you
11       know, people do tend to --
12                You know, we work on the premise that
13       situations that are 1 in 10,000 odds, it's
14       probably the -- what was it? -- you know,
15       whatever the other.  Subtract the 1 from the
16       10,000.  9,999.  You'll fly in an airplane
17       tonight or tomorrow because they don't crash
18       most of the time, but they do crash now and
19       again.  These are facts of life that one has
20       to play into these cases.
21   Q.  Is there any literature that you are aware of
22       that documents retrospectively the same type
23       of highly aggressive sarcoma that Lillian
24       Dailey died of?
25   A.  What do you mean by "documents
0083
 1       retrospectively"?
 2   Q.  Well, have you seen any literature that has --
 3       that even post-mortem has talked about the
 4       findings that are similar to those that exist
 5       in Lillian Dailey's case?
 6   A.  Well, I mean, there's a very small literature
 7       on tumors designated high-grade endometrial
 8       sarcoma segregated out from endometrial
 9       stromal sarcoma.  There's a very small
10       literature on that.
11                Obviously, some of those patients
12       have died.  That's why the tumor is known to
13       have a poorer prognosis.  That's why it is
14       segregated from endometrial stromal sarcoma.
15       I mean, how many of those at autopsy, I can't
16       say.  I mean, I haven't reviewed the
17       literature prior to this event today.
18   Q.  Doctor, I'm not suggesting that you reviewed
19       it before today.  I'm just asking whether or
20       not as a anatomic pathologist that has an
21       interest in gynecological pathology, 65,
22       70 percent of your practice, are you aware of
23       any journal articles that have reported on
24       pathology findings similar to those that
25       Lillian Dailey had?
0084
 1   A.  Similar to in the sense that the tumor is
 2       given the same name.  How many of them without
 3       reviewing the particulars of those cases were
 4       quite as virulent as her case, I honestly
 5       can't say.
 6   Q.  If I wanted to see an article that was similar
 7       to hers, perhaps not as virulent as hers, but
 8       where would be the best place to look for that
 9       study or journal article?
10   A.  Oh, the literature.
11   Q.  Of course.  But can you help me out any
12       further in terms of citing --
13   A.  Do you not have your own experts to help you?
14   Q.  Doctor, are you able to, as an expert on
15       behalf of the defense, cite me to any
16       literature?
17   A.  I mean, there are papers.  There's Dr. Harry
18       Evans' well-known paper of the early 1980s on
19       undifferentiated endometrial sarcoma as he
20       called it.  I mean, there's any number of
21       books that would give you references.
22   Q.  Dr. Harry Evans?
23   A.  Yes.
24   Q.  And he's written on this particular --
25   A.  He's written -- he's written on what he called
0085
 1       undifferentiated endometrial sarcoma might
 2       have been his terminology.
 3   Q.  Do you agree with the pathology description as
 4       contained in the Cleveland Clinic records?
 5   A.  Well, can I just see it so I don't
 6       mischaracterize it?
 7   Q.  Of course.  You can look at anything you need
 8       to.
 9                (Witness reviews record)
10   A.  Yes, I think I find myself in agreement with
11       it.
12   Q.  The autopsy, was that of any assistance in
13       terms of --
14   A.  I mean, I suppose it just supported the very
15       aggressive nature of the cancer.
16   Q.  A couple questions about your report.  In your
17       report, you talk about a high-grade, 3 of 3,
18       typical pattern of neoplasms of endometrial
19       stromal derivation but the morphologic
20       features of the tumor cells -- if you could
21       just get to your report.  I'd like you to
22       explain to me what the stromal derivation in
23       the --
24   A.  It had certain growth characteristics that
25       were some -- that were reminiscent of what one
0086
 1       sees in a tumor that was characterized by
 2       endometrial stromal derivation, but it had
 3       otherwise characteristics that were too
 4       unusual and atypical to be put in that
 5       particular category.
 6   Q.  Can you explain to me what the characteristics
 7       were that made it --
 8   A.  The cells that didn't have the vascular
 9       pattern of that tumor.  The cells were more
10       cytologically atypical.  Those were probably
11       the two primary features.
12   Q.  And if you were to put the slides under the
13       microscope right now, would you be able to
14       explain to me in simple terms the atypia, if
15       you will, or the atypical nature?
16   A.  Well, it just means how bad they look.  I
17       mean, as you're not a trained pathologist,
18       with all due respect, it wouldn't be any
19       different than just telling you in plain
20       words.  I mean, as Dr. Brainard commented in
21       her own report, which is actually very good, I
22       think, at the Cleveland Clinic.
23   Q.  Okay.  So showing these to the jury isn't
24       gonna help?
25                MR. RIEMENSCHNEIDER:  Objection.
0087
 1   A.  I mean, they might or might not.  I don't -- I
 2       mean, that's -- I mean, whatever counsel
 3       ultimately thinks might be of relevance to the
 4       case.  I mean, I don't know.
 5   Q.  I'm sorry.  What was that?  Whatever?
 6   A.  Well, I mean, if Mr. -- you know, if
 7       ultimately it is concluded -- if he concludes
 8       that as a service to his client it might be
 9       beneficial, obviously it might happen, I
10       suppose.
11   Q.  And you're part of this team.  Right?
12                MR. RIEMENSCHNEIDER:  Objection.
13   A.  Of what team?
14   Q.  The defense team.
15                MR. RIEMENSCHNEIDER:  Objection.
16   A.  I mean, obviously.  He's asked me to -- but
17       I'm gonna say the truth whether he likes it or
18       not.
19   Q.  The diagnostic studies that had been done in
20       November and in May on this patient would have
21       included ultrasounds and endometrial biopsies.
22       Correct?
23   A.  Correct.
24   Q.  There weren't any CAT scans, were there, to
25       your knowledge?
0088
 1   A.  Not that I remember.  But, again, I don't have
 2       all the -- everything committed to memory.
 3   Q.  The fact that the ultrasounds did not show any
 4       evidence of the tumor outside the uterus, is
 5       that surprising to you?
 6   A.  It's not surprising to me, no.
 7   Q.  Can you explain to me why?
 8   A.  I mean, imaging studies of tumors don't show
 9       lots of things like involvement of little
10       blood vessels by tumor.  That's why pathologic
11       analysis ends up the gold standard.  That's
12       why people biopsy tumors.  That's why there
13       are oftentimes unexpected findings in many,
14       many specimens that the imaging studies
15       haven't picked up.  I mean, this is common
16       knowledge.
17   Q.  But besides the vascular spread, which you
18       said had occurred even back as of November of
19       2004 --
20   A.  Correct.
21   Q.  -- is it your testimony that there would have
22       been tumor burden or tumor load, whatever,
23       that was outside of the uterus as of
24       November --
25   A.  Yes.
0089
 1   Q.  -- of 2004?
 2   A.  Yes.
 3   Q.  And also as of obviously May --
 4   A.  Yes.
 5   Q.  -- and June?
 6   A.  Yes.
 7   Q.  Now, how sensitive is an ultrasound if a
 8       tumor, if you know, sir --
 9   A.  I mean, I'm no expert in ultrasound, but I
10       just know from my practice as a pathologist
11       that there are many cases one sees in which
12       imaging studies have not shown what pathologic
13       findings document.
14   Q.  Okay.  Would you expect --
15   A.  Otherwise, we'd be out of business.
16   Q.  And we don't want to do that to you.
17   A.  Well --
18   Q.  As far as the ultrasounds, do you know --
19       given the tumor burden, the size of the tumor
20       in November, the size of the tumor at the time
21       of the surgery, personally, even though you're
22       not an ultrasonographer and you don't do this,
23       but were you surprised that there wasn't
24       evidence on ultrasound of tumor outside the
25       uterus?
0090
 1   A.  Not really.
 2   Q.  If a CT scan had been done, do you know
 3       whether a CT would have further demonstrated
 4       or is that outside your area of expertise?
 5   A.  No, I'm not -- I will just repeat what I've
 6       said before, that I have seen many cases in
 7       which the findings on pathology are at
 8       variance with what has been documented prior
 9       to the surgery on the basis of imaging studies
10       including, but not limited to, ultrasound and
11       CAT scans.
12   Q.  And I'll repeat what I just asked a moment
13       ago, whether or not you know whether a CT scan
14       would have shown evidence of the tumor outside
15       the uterus?  If you don't know because it's
16       outside your area of expertise --
17   A.  Well, I think I just answered the question.
18   Q.  No, you didn't answer it.  Doctor, answer my
19       question.  Do you know whether a CT scan if it
20       had been done in May or June would have
21       demonstrated given what you know at the time
22       of the surgery and the autopsy?
23   A.  Your question is completely hypothetical, so I
24       will answer it as best I can.  And if you have
25       the right to ask the questions, I have the
0091
 1       right to answer the questions.
 2   Q.  And hopefully you'll answer my question.
 3   A.  Based on my knowledge and prior experience
 4       with imaging studies including, but not
 5       limited to, ultrasound and CAT scan, there are
 6       many cases -- and this may be one of them --
 7       in which imaging studies failed to disclose
 8       what is ultimately shown to be present on
 9       pathologic examination.
10   Q.  What's the mitotic index of Lillian's tumor?
11   A.  High.
12   Q.  Is there a gradation that's used in terms of
13       mitotic index or is high --
14   A.  There's no absolute gradation.  I mean,
15       obviously there are some cases that are low
16       and this is high.  There's not -- you know,
17       there's not any cast iron counting,
18       particularly in a case like this when the
19       sarcoma is high-grade.
20   Q.  We can certainly agree that a higher mitotic
21       index is associated with a higher grade tumor.
22       Correct?
23   A.  There is a relationship.  But actually some
24       very, very malignant tumors do not have that
25       high a mitotic rate, believe it or not.
0092
 1   Q.  Is there an epithelial component?
 2   A.  No.
 3   Q.  You didn't consider this to be a mixed tumor,
 4       did you?
 5   A.  No.
 6   Q.  What would you have had to have seen to have
 7       considered this to be a mixed tumor?
 8   A.  An epithelial component.
 9   Q.  Okay.  So the absence of that rules it out?
10   A.  Correct.
11   Q.  Okay.  What would you have had to have seen to
12       have called this a stromal tumor?
13   A.  Well, we touched upon this.  An endometrial
14       stromal tumor, you mean?
15   Q.  Yes.
16   A.  The vascularity of that tumor, lower grade
17       cytology would be the two main features.  And
18       a more -- a more significant permeation of the
19       typical tongue-like growth.  There was an
20       element of that here as we discussed earlier,
21       but it was only focal.
22   Q.  Isn't mitotic count only a reliable indicator
23       in early tumor staging?
24   A.  Reliable count for what?
25   Q.  For staging it.  Looking at the mitotic
0093
 1       count --
 2   A.  Mitotic count plays no role in staging of
 3       tumors whatsoever.
 4   Q.  So you'd be surprised to see literature even
 5       in pathology or in gynecological oncology that
 6       indicates that mitotic count does play a role
 7       in staging tumors?
 8   A.  In staging tumors?
 9   Q.  Yes.
10   A.  I would be stunned if anyone were stupid
11       enough to say that.
12   Q.  Okay.  You've read Dr. McLellan's deposition?
13   A.  Mm-hmm.
14   Q.  Did you make any notes at all?
15   A.  No.
16   Q.  Are there any areas that you disagree with in
17       terms of Dr. McLellan's opinions?
18                MR. RIEMENSCHNEIDER:  Objection.
19   A.  Yeah, I don't -- I mean -- well, you asked
20       me -- you want to go over it line by line?
21   Q.  You said you've read it.
22   A.  I have read it prior to this.  My mother died
23       on Thursday so the last few days have been a
24       little bit chaotic, if you really want to
25       know.
0094
 1   Q.  I'm sorry for your loss.
 2   A.  Thank you.
 3   Q.  Dr. McLellan does not believe that there was
 4       any evidence of spread of the tumor outside
 5       the uterus as of May and June, and that there
 6       was no clinical evidence that there was any
 7       spread of the tumor as of May, June.  Do you
 8       have a --
 9   A.  I'm aware of that.  I'm aware of that.  And of
10       course, as you know, my own opinion is
11       obviously the opposite.
12   Q.  And Dr. McLellan says that based upon this
13       patient's bleeding, her age, the growth in the
14       ultrasounds, that any reasonable gynecologist
15       would have performed a hysterectomy, that the
16       risk-benefit analysis in terms of doing the
17       hysterectomy versus not doing the hysterectomy
18       clearly dictated that the patient should have
19       had a hysterectomy at that time.
20                I presume that in terms of performing
21       the hysterectomy, that's something that you
22       would defer to a GYN or a GYN oncologist?
23   A.  Yes.
24                MR. RIEMENSCHNEIDER:  Just note an
25       objection to the question.
0095
 1   Q.  But bottom line is, even if the hysterectomy
 2       had been done in May or June, you don't think
 3       that the patient's morbidity, mortality or
 4       life expectancy would have been altered at
 5       all?
 6   A.  Correct.
 7   Q.  Doctor, have we covered the opinions that you
 8       have relative to the type of uterine sarcoma,
 9       the reasons why this uterine sarcoma you
10       believe that it would not have been altered in
11       terms of treatment had it been diagnosed any
12       earlier, the significant pathology findings
13       that you believe relate to your opinions or am
14       I missing anything?
15   A.  I think we've covered them.
16   Q.  And, again, believe it or not, I want to be
17       fair to you to make sure that I have not
18       denied you the opportunity to explain the
19       bases for your opinions.  Have I given you --
20       even though you and I maybe have jarred a
21       little bit -- have I given you the opportunity
22       to explain your opinions reasonably?
23   A.  Yeah, I believe so.
24   Q.  Okay.
25                MR. MISHKIND:  Thank you, sir.
0096
 1                THE WITNESS:  Okay.
 2                (Whereupon the deposition was
 3       concluded at 3:53 p.m.)
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0097
 1                    C E R T I F I C A T E
 2   
 3       COMMONWEALTH OF MASSACHUSETTS
 4   
 5             I, Mary E. Rinne, Registered
 6       Professional Reporter and Notary Public for
 7       the Commonwealth of Massachusetts,
 8       do hereby certify that the foregoing
 9       transcript of the deposition of Robert Young,
10       M.D., having been satisfactorily identified
11       and duly sworn on Monday, April 6, 2009, is
12       true and accurate to the best of my knowledge,
13       skill and ability.
14             IN WITNESS HEREOF, I have hereunto set
15       my hand and notarial seal this 15th day of
16       April 2009.
17   
18   
19   
20   
                                Mary E. Rinne
21                              RPR and Notary Public
22   
23       My Commission Expires:  January 1, 2010
24   
25   
0098
 1       DEPONENT'S ERRATA SHEET
 2       AND SIGNATURE INSTRUCTIONS
 3   
 4                The Original of the Errata Sheet has
 5       been delivered to Dirk E. Riemenschneider,
 6       Esq.
 7                When the Errata Sheet has been
 8       completed by the deponent and signed, a copy
 9       thereof should be delivered to each party of
10       record and the ORIGINAL delivered to Howard D.
11       Mishkind, Esq., to whom the original
12       deposition transcript was delivered.
13   
14                INSTRUCTIONS TO DEPONENT
15   
16                After reading this volume of your
         deposition, indicate any corrections or
17       changes to your testimony and the reasons
         therefor on the Errata Sheet supplied to you
18       and sign it.  DO NOT make marks or notations
         on the transcript volume itself.
19   
20       REPLACE THIS PAGE OF THE TRANSCRIPT WITH THE
21       COMPLETED AND SIGNED ERRATA SHEET WHEN
22       RECEIVED.
23   
24   
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0099
 1       ATTACH TO THE DEPOSITION OF ROBERT YOUNG, M.D.
         CASE: DAILEY v. OHIO PERMANENTE, et al.
 2       APRIL 6, 2009
 3                      ERRATA SHEET
 4       INSTRUCTIONS:  After reading the transcript of
         your deposition, note any change or correction
 5       to your testimony and the reason therefor on
         this sheet.  DO NOT make any marks or
 6       notations on the transcript volume itself.
         Sign and date this errata sheet (before a
 7       Notary Public, if required).
         Refer to Page 98 of the transcript for errata
 8       sheet distribution instructions.
 9       PAGE  LINE
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                  I have read the foregoing transcript
21       of my deposition and except for any
         corrections or changes noted above, I hereby
22       subscribe to the transcript as an accurate
         record of the statements made by me.
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24                         ___________________________
                           Robert Young, M.D.     Date
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