0001
 1             IN THE COURT OF COMMON PLEAS
 2               OF CUYAHOGA COUNTY, OHIO
 3                 ~~~~~~~~~~~~~~~~~~~~
 4   SHANNON SULLIVAN, et al.,
 5   
 6               Plaintiffs,
 7   
 8         vs.            Case No. CV 09 697617
 9   
10   THE CLEVELAND CLINIC FOUNDATION,
11   
12               Defendant.
13                 ~~~~~~~~~~~~~~~~~~~~
14                    Deposition of
15             JOHN PAUL CONOMY, M.D., J.D.
16   
                      March 15, 2011
17                      10:12 a.m.
18   
19                      Taken at:
20        Office of John Paul Conomy, M.D., J.D.
21         27629 Chagrin Boulevard, Suite 205
22                   Beachwood, Ohio
23   
24   
25                Ashanti Edwards, RPR
0002
 1   APPEARANCES:
 2   
 3         On behalf of the Plaintiffs:
 4               Mishkind Law Firm Co., L.P.A., by
 5               HOWARD D. MISHKIND, ESQ.
 6               DAVID A. KULWICKI, ESQ.
 7               23240 Chagrin Boulevard, Suite 101
 8               Commerce Park IV
 9               Cleveland, Ohio 44122
10               (216) 241-2600
11               Hmishkind@mishkindlaw.com
12   
13         On behalf of the Defendant:
14               Roetzel & Andress Co., L.P.A., by
15               ANNA MOORE CARULAS, ESQ.
16               1375 East Ninth Street
17               One Cleveland Center
18               Cleveland, Ohio 44114
19               (216) 615-7401
20               Acarulas@ralaw.com
21                      ~ ~ ~ ~ ~
22   
23   
24   
25   
0003
 1                   TRANSCRIPT INDEX
 2   
 3   APPEARANCES...............................    2
 4   
 5   INDEX OF EXHIBITS ........................    4
 6   
 7   EXAMINATION OF JOHN PAUL CONOMY, M.D., J.D.
 8   BY MS. CARULAS............................    5
 9   
10   REPORTER'S CERTIFICATE....................  120
11   
12   EXHIBIT CUSTODY
13   EXHIBITS RETAINED BY COURT REPORTER
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
25   
0004
 1                  INDEX OF EXHIBITS
 2   NUMBER           DESCRIPTION             MARKED
 3   Exhibit A   Letter from Mr. to Dr. .......   6
                 Conomy dated May 28th, 2010
 4   
     Exhibit B   Summary Report dated June ....  10
 5               21, 2010
 6   Exhibit C   Code of Federal Regulations, .  20
                 Title 21
 7   
     Exhibit D   Updated CV....................  29
 8   
     Exhibit E   Article by Dr. Kanj........... 103
 9   
     Exhibit F   ACC/AHA/ESC Practice ......... 108
10               Guidelines
11   
12   
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
25   
0005
 1               JOHN PAUL CONOMY, M.D., J.D., of
 2   lawful age, called for examination, as provided
 3   by the Ohio Rules of Civil Procedure, being by
 4   me first duly sworn, as hereinafter certified,
 5   deposed and said as follows:
 6     EXAMINATION OF JOHN PAUL CONOMY, M.D., J.D.
 7   BY MS. CARULAS:
 8         Q.    State your full name for the
 9   record, please.  State your full name for the
10   record, please.
11         A.    My name is John Conomy.
12         Q.    Dr. Conomy, we've met before.  I'm
13   here to take your discovery deposition.  You
14   brought -- did you bring your entire file on
15   this case with you?
16         A.    I did.
17         Q.    Okay.  I tried to look through it.
18   I didn't want to disrupt it too much.
19               Can you tell me when it was you
20   were first contacted in this case?
21         A.    There should be some transmittal
22   letters.  It appears that I was first contacted
23   on May 20th, 2010 --
24         Q.    Okay.
25         A.    -- by Mr. Kulwicki.
0006
 1         Q.    All right.  Do you have a letter
 2   there?
 3         A.    Yes.
 4                    -  -  -  -  -
 5               (Thereupon, Deposition Exhibit A,
 6               Letter from Mr. to Dr. Conomy dated
 7               May 28th, 2010, was marked for
 8               purposes of identification.)
 9                    -  -  -  -  -
10         Q.    We have a letter here May 28th,
11   2010 from Mr. Kulwicki to you enclosing a
12   number of materials.
13               Did you speak with Mr. Kulwicki
14   prior to him sending you this letter?
15         A.    I probably did, but I don't have a
16   recollection of it.  Such conversations usually
17   come in the middle of something else.  He may
18   have said something about the case and I agreed
19   to review it.  I'm telling you that because
20   that is what usually happens.  I don't have a
21   specific recollection of it.
22         Q.    Okay.  We're going to need to leave
23   that out because that's going to be attached to
24   the transcript.
25         A.    Okay.  I can get some copies for
0007
 1   you at the end.
 2         Q.    All right.  At any point in time
 3   have you spoken with a woman by the name of
 4   Michelle Mahon from Mr. Kulwicki's office?
 5         A.    No.
 6         Q.    Okay.  You've spoken with
 7   Mr. Kulwicki about the case, obviously?
 8         A.    Yes.
 9         Q.    Prior to today have you ever spoken
10   with Mr. Mishkind about the case?
11         A.    No, I have not.
12         Q.    Now, you authored a report that's
13   dated June 21st, 2010?
14         A.    Yes.
15         Q.    Which is a five-page report; is
16   that correct?
17         A.    That's correct.
18         Q.    Besides this document, have you
19   authored any other reports?
20         A.    No, I have not.  I received a life
21   care plan, but I -- I think I included -- I may
22   not have.  But I know I received that
23   additionally as a separate mailing.
24         Q.    Okay.  But this is the only -- this
25   June 21st, 2010 is the only report you've
0008
 1   authored, correct?
 2         A.    That's correct.
 3         Q.    And from my review of your report,
 4   we'll go into it in greater detail, but it
 5   appears as if your opinions in this case are
 6   going to be limited to the issues of causation
 7   and damages, correct?
 8         A.    Yes.  With the understanding that
 9   causation and damage frequently touches upon
10   other elements, yes.
11         Q.    Okay.  Fair enough that you will
12   not be rendering any standard of care opinions
13   as to what is the reasonable and appropriate
14   standard of care for an electrophysiologist?
15         A.    Not for a cardiac
16   electrophysiologist, no.
17         Q.    Okay.  And as far as the overall
18   case, by saying you are going to testify on
19   causation and damage, you will not be rendering
20   any standard of care opinions at all, fair?
21         A.    Well, there are some things that
22   touch on the issue of research that may butt up
23   against that.
24         Q.    Okay.
25         A.    I intend to respond to questions on
0009
 1   that depending on how they're framed.
 2         Q.    Okay.  In your report of June 21st,
 3   2010, did you set forth any standard of care
 4   opinions?
 5         A.    No, I did not.
 6         Q.    Okay.  Am I -- you understand since
 7   you've been through a deposition many, many
 8   times, am I safe to, as I leave here today,
 9   understand that your testimony will be limited
10   to causation and damages and you will not be
11   rendering any, quote, unquote, standard of care
12   opinions, true?
13         A.    Yes.  You've asked the question
14   several times.  If I may, let me have you move
15   to point 7, which is on page 4.
16         Q.    Yes.
17         A.    He is subjected to cardioversion in
18   the course of his cardiac treatment.  That may
19   touch upon administrative matters rather than
20   medical matters that involve physician
21   treatment.  Whether those could be interpreted
22   as standard of care opinions or causation
23   opinions I would leave to you.
24         Q.    Okay.  Well, I -- you have not
25   authored any standard of care -- you expressed
0010
 1   no standard of care opinions in your report,
 2   correct?
 3         A.    That's correct.  With respect to
 4   the physicians and people who cared for him, I
 5   have no standard of care opinions.
 6         Q.    Okay.  And you have expressed no
 7   standard of care opinions as to specifically
 8   the hospital in this report, true?
 9         A.    Not specifically.
10         Q.    All right.  So I will question you
11   here today on the issues of causation and
12   damages.
13               Fair?
14         A.    Fine.
15                    -  -  -  -  -
16               (Thereupon, Deposition Exhibit B,
17               Summary Report dated June 21, 2010,
18               was marked for purposes of
19               identification.)
20                   -  -  -  -  -
21         Q.    Okay.  Now, in your report you have
22   listed a number of different materials that you
23   reviewed in this case.  We'll just mark your
24   report as Exhibit B.  Let me just put this at
25   the bottom of that, please.  I'll put it right
0011
 1   here.  First of all, you have the records of
 2   the Cleveland Clinic and then secondly -- and
 3   you have those in your lap right now?
 4         A.    I have everything in my lap.
 5         Q.    You have imaging studies from the
 6   Cleveland Clinic.  What imaging studies --
 7         A.    Brain imaging studies.
 8         Q.    All right.  So those are studies
 9   after the stroke in this case?
10         A.    Yes, they are.
11         Q.    All right.  You have not looked at
12   any pre-procedure imaging, true?
13         A.    Of what?  Of his brain or anything
14   else?  I have not seen any pre-imaging --
15         Q.    All right.  You have listed here
16   the treatment records of a Dr. Ahu, Crowly,
17   Tanabe, Wong and Makino.
18         A.    I have.  Tanabe, Wong, Makino, you
19   know, they're all from Honolulu.
20         Q.    And it looks like you also at least
21   referenced Ahu and Crowly, correct?
22         A.    Yes.
23         Q.    Besides these records here, have
24   you been provided and reviewed any other
25   records from outside of the Cleveland Clinic?
0012
 1         A.    No.
 2         Q.    Have you asked for any other
 3   records outside the Cleveland Clinic?
 4         A.    Not to this point.
 5         Q.    You have reviewed the deposition of
 6   Dr. Burkhardt?
 7         A.    I have.
 8         Q.    I assume you have not reviewed any
 9   other depositions in this case?
10         A.    Yeah, I have.  But I'm not sure --
11   let me be sure about what it is I'm telling you
12   here.  I think that's correct.  Just his.
13         Q.    Are there any depositions that you
14   have requested that you have not received?
15         A.    No, there are not.
16         Q.    So in order to come up with your
17   opinions you did not feel that any of the other
18   depositions were necessary, is that fair?
19         A.    No.  That's not fair.  I don't know
20   whose deposition was taken, I don't know what
21   they were asked, if they think important rather
22   than me to call the earth to see who's been
23   deposed and what they've said.  I certainly
24   want depositions if they are important.  I
25   don't know who's been deposed about what.  I
0013
 1   would have to leave that to the discernment of
 2   Mr. Mishkind and Mr. Kulwicki.
 3         Q.    Okay.  So as a result what you're
 4   saying is in a case such as this you wouldn't
 5   ask for depositions?  You would wait and if
 6   they feel they're relevant, then you would
 7   review them --
 8         A.    Yes.
 9         Q.    -- and if they didn't feel they
10   were relevant, you don't ask for them?
11         A.    Correct.
12         Q.    Okay.  Now, you then were provided
13   with website material from the Cleveland
14   Clinic?
15         A.    Well, I'm not sure where it came
16   from, but it's website materials or offprints
17   of library materials.  I'm not sure where it
18   originated.  They didn't originate at the
19   Cleveland Clinic.  They're part of professional
20   conversations, public domain.
21         Q.    All right.  And then you have a
22   listing here of what you described as worm
23   sources?
24         A.    Yes.
25         Q.    You've listed an article by
0014
 1   Dr. DiBiase --
 2         A.    Yes.
 3         Q.    -- Dr. Kanj and Dr. Wazni?
 4         A.    That's correct.
 5         Q.    As far as those three articles,
 6   which you listed there, were those provided to
 7   you by Mr. Kulwicki?
 8         A.    Those were.
 9         Q.    Okay.  And then on the next page it
10   goes -- you also list the American College of
11   Cardiology, American Heart Association
12   Guidelines, the European Society of Cardiology
13   expert consensus statement and an article by
14   lead author Patel; is that correct?
15         A.    Yes.
16         Q.    Those three items were also
17   provided to you by Mr. Kulwicki?
18         A.    They were.
19         Q.    Have you, yourself, done any
20   specific research on your own to come up with
21   your opinions in this case?
22         A.    Well, the opinions haven't been
23   elicited yet, but I did print off the Code of
24   Federal Regulations, Title 21, and a couple of
25   forms that have to do with the issue of
0015
 1   informed consent.  Now, I did this because in
 2   the material furnished from the Cleveland
 3   Clinic, authored by Dr. Luigi DiBiase and
 4   others, it is said that the sort of cardiac
 5   ablation procedure that Mr. Shannon Sullivan
 6   underwent was part of a research study.  It was
 7   confirmed and managed by the institutional
 8   review board and, therefore, I would assume
 9   confirming those requirements that govern the
10   experimental testing and research done on
11   humans.
12         Q.    Okay.  I notice the date of when
13   you pulled this off of the website is today?
14         A.    That's exactly right.
15         Q.    Okay.
16         A.    I'll tell you why.  I want to keep
17   it with this case rather than pulling it out
18   from other cases.  I think it's bona fide and,
19   you know, tested and in place in clinical
20   research for a very long time preceding today.
21   And I'm familiar with it.
22         Q.    Okay.  Now, I assume today
23   Mr. Kulwicki and Mr. Mishkind came out to talk
24   to you about this case, correct?
25         A.    Yes.
0016
 1         Q.    And this was pulled off while they
 2   were here in the office with you?
 3         A.    Yes.  But they were busy nattering
 4   at each other while I did that.  I don't know
 5   if they had a chance to see it or read it yet.
 6         Q.    Okay.
 7         A.    Probably not.
 8         Q.    However, you pulled this off of the
 9   internet during the time period that they were
10   here meeting with you in the office?
11         A.    Yes, I did.
12         Q.    And so this issue -- I see that
13   there's nothing in your report as far as the
14   Code of Federal Regulations; is that correct?
15         A.    Yeah.  It's not.
16         Q.    Okay.  So the first time that that
17   issue came into discussion with Mr. Kulwicki
18   and Mr. Mishkind was today, correct?
19         A.    No.  That's not correct.
20         Q.    When did you speak with either of
21   them about the Code of Federal Regulations
22   before today?
23         A.    I can't remember the exact date.  I
24   know it was a conversation with Mr. Kulwicki
25   and it was indeterminate as to what to do with
0017
 1   that issue.
 2         Q.    All right.  Tell me about that.
 3         A.    I just did.
 4         Q.    How was it indeterminate?  Tell me
 5   about the discussion you had.
 6         A.    They weren't sure how it might be
 7   incorporated or pursued.
 8         Q.    And when was this discussion?  This
 9   was Mr. Kulwicki and you?
10         A.    I don't remember exactly.  It was
11   some time ago.  Months.
12         Q.    Months ago?
13         A.    Um-hmm.
14         Q.    And when you say they weren't sure
15   about how this would be incorporated, explain
16   that to me.
17               MR. KULWICKI:  Let me object.  I'm
18   going to instruct the witness not to answer.
19   To the extent that we had conversations about
20   medical-legal aspects in this case and
21   Dr. Conomy acting as our consultant, that's
22   attorney work product.  You certainly can ask
23   him anything about his opinions in his report,
24   but I don't think it's appropriate for you to
25   inquire about conversations that he and I had.
0018
 1   I'm going to instruct him not to answer that
 2   question.
 3               MS. CARULAS:  Well, I disagree.
 4   There is no privilege that exists between you
 5   and an expert witness.  Anything that goes into
 6   the formation of his opinion, whether it's
 7   review of individual documents or discussions
 8   with an attorney, is absolute fair game.  You
 9   know that.
10               MR. KULWICKI:  Well --
11               MS. CARULAS:  Let me finish.  I'm
12   entitled to know what the discussion was
13   between the two of you, just as I'm entitled to
14   correspondence between the two of you, which
15   you did not object to.  We're either going to
16   come back here again at your expense -- we can
17   call the court right now, if you'd like.  But
18   let's just move on and --
19               MR. KULWICKI:  The predicate is
20   that he relied on -- your statement was he
21   relied on something that took place in his and
22   my conversation.  You haven't established that
23   yet.  The extent that we have a discussion and
24   he's advising me about medical-legal
25   implications of different medical issues is
0019
 1   different from you getting his opinions on the
 2   table and the bases for his opinions.  I don't
 3   have any problem with you asking about the
 4   bases of his opinions, but I don't think you
 5   have a right to inquire about our
 6   conversations.  So I stand by it.
 7               MS. CARULAS:  Well, I disagree.
 8   We'll come back if we need to.
 9               MR. KULWICKI:  Okay.
10   BY MS. CARULAS:
11         Q.    Now, tell me, were you asked at any
12   point in time to author an opinion prior to
13   coming here today on the issue of the Code of
14   Federal Regulations?
15         A.    I was not asked to author such an
16   opinion today.
17         Q.    Okay.  So you do not plan to give
18   any opinions today on the issue of this Code of
19   Federal Regulations and the subject of this,
20   correct?
21         A.    Not exactly.  Depends on if I'm
22   asked.  If I'm asked, I intend to reply.  If
23   I'm not, I won't.
24                    -  -  -  -  -
25               (Thereupon, Deposition Exhibit C,
0020
 1               Code of Federal Regulations, Title
 2               21, was marked for purposes of
 3               identification.)
 4                    -  -  -  -  -
 5         Q.    Okay.  All right.  Let me ask you
 6   then, just so I'm clear, as far as this Code of
 7   Federal Regulations that you pulled up off the
 8   computer today while Mr. Mishkind and
 9   Mr. Kulwicki were here with you, prior to this,
10   which we've marked as Exhibit C, have you done
11   any other independent research in this case?
12         A.    No.  Not really.  Certainly the
13   kinds of things from the Department of
14   Cardiology at the Cleveland Clinic about
15   innovative techniques and so forth were highly
16   instructive, but I did not do independent
17   research beyond that.
18         Q.    Okay.  Other than these two
19   gentlemen, have you spoken with anyone else
20   about this case?
21         A.    No, I have not.
22         Q.    I assume you have not met
23   Mr. Sullivan?
24         A.    I hope to.  I'm going to give a
25   couple of lectures in Honolulu, a hardship tour
0021
 1   in April.
 2         Q.    Okay.
 3         A.    I hope to meet with him and examine
 4   him.  It's always my preference to examine
 5   someone who I may be meeting in courtroom
 6   litigation.  So if that can be arranged, I
 7   certainly want to do that.
 8         Q.    Okay.  I saw your report.  At the
 9   end you mentioned that you might want to go to
10   Hawaii and I wondered if that was something
11   that has -- has that been arranged at all?
12         A.    Yes.  But it wasn't arranged for
13   Mr. Sullivan.  Speaking with a couple medical
14   organizations in Hawaii it provides an
15   opportunity for me to meet with him and --
16               MR. MISHKIND:  Just so you know,
17   it's going to be the second week of April since
18   he's going to be there.  And we're going to
19   arrange to have Shannon seen by Dr. Conomy
20   while he's there.
21         Q.    Okay.  And what --
22               MS. CARULAS:  Would you like one?
23               THE WITNESS:  Sure.
24               MS. CARULAS:  Anyone else?
25               MR. MISHKIND:  Sure.
0022
 1         Q.    Tell me, what is it that is taking
 2   you to Hawaii?  What are the talks you're going
 3   to be making?
 4         A.    The meeting of the American Academy
 5   of Neurology and the Hawaiian Neurologic
 6   Society.
 7         Q.    And what is the subject of your
 8   discussion?
 9         A.    I'm discussing telemedicine for
10   stroke.  It's challenging because people sit in
11   the middle of the Pacific Ocean and some of the
12   land masses near them, as small as they are,
13   are governed by governments outside of the
14   United States.  So how this might work should
15   be a very challenging business.  What is
16   intended is a system of stroke treatment done
17   in a tele-electronic computerized method within
18   the Hawaiian Islands and probably outside of
19   it.
20         Q.    You have a program already as far
21   as the talk?
22         A.    Yes.
23         Q.    Okay.  Is that something I could
24   see?
25         A.    If you want to sign up and take a
0023
 1   course and pay for it, yes.  Otherwise, no.
 2   That has nothing to do with this.
 3         Q.    Do you have a copy of the syllabus?
 4   I'm not interested in going to the seminar, but
 5   I'm sure you have a publication that's sent
 6   out --
 7         A.    I can send you something.
 8         Q.    What's that?
 9         A.    I can send you something about it.
10         Q.    Or we can get it before I leave?
11               MR. MISHKIND:  Either that or,
12   depending on the time, if you follow up with a
13   letter to us we'll make sure that, if there's
14   something that's out there concerning the
15   seminar, we'll get it to you.
16               MS. CARULAS:  Okay.
17         Q.    All right.  Now, as far as -- I
18   know we've discussed how these various items of
19   literature were provided to you by
20   Mr. Kulwicki.
21               Are you aware of who the authors of
22   these three first articles there on page 1 of
23   your report, what institution --
24         A.    Well, I could read them off for
25   you.  I don't know them personally, but I know
0024
 1   the names.  What --
 2         Q.    Your report.
 3         A.    I understand.
 4         Q.    Do you have it in front of you?
 5         A.    Yeah.  I'll get it.  Don't help me.
 6         Q.    What's that?
 7         A.    Don't help me.
 8         Q.    I'm trying to get you out of here
 9   in time.
10         A.    Okay.  I'll keep them in order.
11               What did you ask me?
12         Q.    Okay.  Under learned sources, the
13   three authors --
14         A.    No.  I don't know them personally.
15   They're identified institutionally.
16         Q.    Okay.  Do you know what
17   institutions those three individuals are from
18   without looking at the --
19         A.    Well, the Cleveland Clinic and
20   other institutions.  Manufacturers of devices,
21   other medical institutions are listed on these.
22   But I don't remember them.  It's not a memory
23   test.
24         Q.    I'm just curious.  DiBiase, Kanj
25   and Wazni, do you know what institutions
0025
 1   they're from?
 2         A.    They're from the Cleveland Clinic.
 3   It says.
 4         Q.    Okay.  Now, are these various
 5   journals that Mr. Kulwicki provided you
 6   information from, are they something that you
 7   review as part of your regular practice?  I
 8   would assume not.
 9         A.    Well, these are highly
10   specialized -- one of them is a circulation,
11   something I see from time to time.  I think I
12   reviewed for it, too.  Because it contains
13   occasional articles that have to do with stroke
14   or some manifestation of neurologic disease.
15   Generally, the American College of Cardiology,
16   that may have an article of interest from time
17   to time.  Again, generally related to stroke.
18         Q.    Okay.  So most of these articles or
19   publications in the electrophysiology realm is
20   outside of your specialty?  Not something you
21   would read regularly?
22         A.    Yeah.  It's outside of the things I
23   ordinarily read.
24         Q.    Okay.  I know you currently are --
25   have an appointment at Case.  Senior status?
0026
 1         A.    Right.
 2         Q.    Tell me what your involvement is at
 3   Case.
 4         A.    I teach some classes.  I give
 5   formal lectures from time to time.  Not many.
 6   Clinical teaching, occasional bedside teaching.
 7   My teaching load is not heavy at this point in
 8   my life.
 9         Q.    Tell me what -- are you still going
10   to Heather Hill?
11         A.    Heather Hill is in the process of
12   transition.  It's being sold off to a propriety
13   -- an organization.  I'm not sure what the
14   future is going to be for me or others on the
15   staff there.  That remains to be seen.  But at
16   least for the moment, yes.
17         Q.    Okay.  And how often do you go to
18   Heather Hill?
19         A.    When I'm called.  I would see --
20   the highest number of patients I've ever seen
21   in a month is 90 and the low is probably five,
22   that are seen in consultation.  The place is
23   staffed by hospitalists, so I generally see
24   them through hospitalists.  But this is
25   becoming the case everywhere.
0027
 1         Q.    That hospitalists are primarily
 2   managing the care?
 3         A.    Yes.  Yes.
 4         Q.    Okay.
 5         A.    They're not alone.  Hospitals
 6   throughout the community do the same thing.
 7         Q.    In 2011, have you been called to
 8   Heather Hill?
 9         A.    Yes.  Not very many times.  Let me
10   guess.  I'd say a half dozen.  I'm not sure of
11   the number.  It's a small number.
12         Q.    And if you would be called, under
13   what circumstance?  Who would you see?
14         A.    If the attending taking care of a
15   patient needed help with some special problem,
16   then I would get called.  They can be all kinds
17   of problems.  Generally, they're very old
18   people.
19         Q.    Okay.  So over the last, I mean,
20   two and a half months you think approximately
21   six times?
22         A.    Approximately, yes.
23         Q.    And for what purpose would they
24   call you?  If they have intensivists, why would
25   they call you?
0028
 1         A.    They're not intensivists, they're
 2   hospitalists.
 3         Q.    Okay.
 4         A.    People with seizures, people with
 5   confusional states, fever from known infection
 6   of the nervous system, trauma.
 7         Q.    And who are the attendings that
 8   have called upon you there?
 9         A.    I can't remember all the staff
10   physicians from there.  Not all of them do I
11   know personally.
12         Q.    Okay.  But can you -- you say
13   you've been called for about six?
14         A.    I think so.
15         Q.    Can you name any of the attendings
16   that have called you in?
17         A.    I don't remember their names.
18         Q.    I mean, if someone has called you
19   for a consult, you then send them a letter, I
20   would assume?
21         A.    Yes, I would.
22         Q.    Okay.  And you --
23         A.    I dictate a consult into my chart.
24   I wouldn't necessarily send them a letter.
25         Q.    You dictate it, but then it's sent
0029
 1   to them, correct?
 2         A.    Yes.  No.  It goes into the chart.
 3   It's not a letter that's sent personally to
 4   them.
 5         Q.    Okay.  You're unable to remember
 6   the name of one of the doctors --
 7         A.    I don't want to guess.
 8         Q.    You're going to have to wait for me
 9   to --
10         A.    But I've answered it two times
11   already.  I don't remember the names of the
12   people.  It tends to be a pretty high turnover
13   bunch, too.  It's not necessarily people I
14   know.
15                    -  -  -  -  -
16               (Thereupon, Deposition Exhibit D,
17               Updated CV, was marked for purposes
18               of identification.)
19                    -  -  -  -  -
20         Q.    Okay.  I know this is an updated
21   CV.  I'm just going to mark it as D.  I notice
22   on the last CV you had listed current hospital
23   appointment at Lutheran Hospital.
24         A.    Correct.
25         Q.    In 2011, have you seen any patients
0030
 1   at Lutheran Hospital?
 2         A.    Just a couple.  These have been
 3   people who are -- local people who have
 4   required immunotherapy for one or the other
 5   diseases of the nervous system.
 6         Q.    On how many occasions in 2011 have
 7   you seen a patient at Lutheran Hospital?
 8         A.    I think there's just been a couple
 9   hospitalizations there.  My hospital load is
10   quite light now, by design.
11         Q.    Okay.  Do you consider yourself
12   semi-retired?
13         A.    No.
14         Q.    Okay.  You've been lightening your
15   load, you say?
16         A.    Well, my week is still seven days
17   and I see patients three days a week.  That
18   leaves time for some other things.  I'm hardly
19   retired.  Although I'm fascinated by the
20   prospect of a shorter day.
21         Q.    Well, it sounds good.  I apologize.
22   I don't mean to, but what is your current age?
23         A.    My current age is 71.
24         Q.    71?
25         A.    Um-hmm.
0031
 1         Q.    And your date of birth?
 2         A.    July 31st, 1938.  The feast of
 3   St. Ignatius.
 4         Q.    Okay.  By my math, you'll be 73 in
 5   July.  Is that right or --
 6         A.    72.  I'm 71 now.  Hold on.  72 or
 7   73?
 8         Q.    I think you're 72.
 9         A.    Okay.  Well, time flies.
10         Q.    Okay.  Trust me.  So you say you've
11   been called a couple times to Lutheran
12   Hospital?
13         A.    Right.
14         Q.    You were on a consulting basis,
15   correct?
16         A.    No.  Those are my patients.
17   They're there because they live on the west
18   side and it's just easier for them to go there
19   for treatment.  Heather Hill is virtually
20   always consultation.
21         Q.    Okay.  And how is it that you --
22   because your office is here where we're
23   located?
24         A.    Right.
25         Q.    How is it you have west side
0032
 1   patients?  Just curious.
 2         A.    Well, I've worked on the west side
 3   before and many of my patients come from the
 4   west side and prefer to stay on the west side
 5   and that's fine with me.  I think it's a
 6   perfectly fine place and it's not that far.
 7         Q.    Okay.
 8         A.    Except for Clevelanders that don't
 9   like to cross bridges.
10         Q.    True.  All right.
11               You mentioned that you see patients
12   three times a week?
13         A.    Yes.
14         Q.    Is that here in your office?
15         A.    Yes, it is.
16         Q.    And so what are your hours three
17   days a week?
18         A.    Well, I generally start seeing
19   patients at 9:00 or 9:30 and try to end around
20   4:30.  Sometimes I start earlier and work
21   later.  In fact, that's very frequent.
22   Fridays, if there are hospital patients, I try
23   to see them then.  If people need to be seen,
24   it's a demand situation.  That goes for
25   Tuesdays and Thursdays, too.  If patients need
0033
 1   to be seen, I see them.
 2         Q.    So you see patients on what days?
 3   Monday, Wednesday, Friday?
 4         A.    And today.  Monday, Tuesday,
 5   Wednesday, and then I leave town.
 6         Q.    Okay.  So generally your office --
 7   I'm sorry.  It's been a while since I deposed
 8   you.
 9               You see patients in your office
10   Monday, Tuesday, Wednesday?
11         A.    Monday, Wednesday, Friday.  That's
12   the ideal.  It almost never works that way
13   because of intrusion, demand and the like.
14         Q.    Okay.  And then you said you leave
15   town?
16         A.    No.  I don't leave town.  I'm
17   leaving town this week.
18         Q.    I see.  But as a general rule, when
19   you're not leaving town, you see patients in
20   the office Mondays, Wednesdays, Fridays?
21         A.    That's correct.
22         Q.    All right.  And what do you do on
23   Tuesdays and Thursdays?
24         A.    I see the overflow from the other
25   three days.  And that's very frequent.  In
0034
 1   fact, it's almost constant.  It leaves me time
 2   for work, teaching, publication, seeing
 3   patients in hospitals, nursing homes, other
 4   hospitals, what happened today.
 5         Q.    All right.  We've talked about the
 6   hospitalization.
 7               When is the last time you've seen a
 8   patient at University Hospitals?
 9         A.    About -- I'm trying to think of
10   which month it was.  I think it was February.
11         Q.    So a patient in February?
12         A.    Yes.
13         Q.    And was that on a consult basis?
14         A.    Yes.
15         Q.    And who is it that consulted you?
16         A.    A person with intractable epilepsy
17   from Chicago.
18         Q.    The patient was?
19         A.    Yes.
20         Q.    And who was the physician who
21   consulted you?
22         A.    He was on the epilepsy team.  An
23   oriental guy.  I forget his name.  It was at
24   the family's request.
25         Q.    And prior to this request from the
0035
 1   family, somehow they knew you from Chicago?
 2         A.    No.  They just knew me.
 3         Q.    Knew of you or --
 4         A.    Yeah.
 5         Q.    Okay.  Besides this one consult in
 6   February from -- at the family's request, prior
 7   to that, when is the last time you --
 8         A.    Probably --
 9         Q.    You're going to have to wait.
10         A.    Okay.
11         Q.    When was the last time you saw
12   someone at University Hospitals?
13         A.    It was probably a couple months
14   earlier than that.  A man with widespread
15   metastatic carcinoma.
16         Q.    That was in the second half of --
17         A.    Yeah.  The weather was still not
18   terrible.
19         Q.    Okay.  So sometime in early fall,
20   perhaps, in 2000 --
21         A.    It wasn't snowing, I remember that.
22         Q.    Okay.
23         A.    The sun was shining.
24         Q.    Okay.  And who consulted you for
25   that?
0036
 1         A.    His physician, a
 2   gastroenterologist.
 3         Q.    And do you know who that physician
 4   was?
 5         A.    That might have been Peter Yang,
 6   but I'm not sure.
 7         Q.    In 2010, how many patients do you
 8   think you saw at UH?
 9         A.    I don't know.  It couldn't have
10   been more than a half dozen.
11         Q.    Now, are you familiar with any of
12   the electrophysiologists down at University
13   Hospitals?
14         A.    In the EEG department or -- which
15   one are you --
16         Q.    The cardiac electrophysiologists?
17         A.    No.  No.
18         Q.    I'm sorry?
19         A.    I thought you were asking about
20   epilepsy or EMG.  No.  No, I don't.  I'm
21   familiar with the names and recognize them, but
22   I really don't know them.
23         Q.    Okay.  As you sit here right now,
24   are you able to tell me who any of the
25   electrophysiologists are at UH?
0037
 1         A.    No.  I would have to look at a
 2   list.
 3         Q.    Okay.  I take it you do not as part
 4   of your practice interact with any of the
 5   electrophysiologists at University Hospitals?
 6         A.    Infrequently.
 7         Q.    Okay.  When you say infrequently,
 8   can you think of an experience you've had in
 9   the last five years that you've interacted with
10   an electrophysiologist at University Hospitals?
11         A.    Yeah.  I've had a patient with a
12   pacemaker.  Polish.  That interaction is
13   generally carried out through cardiologists in
14   triangulation.  My interactions with them are
15   quite infrequent, as I said.
16         Q.    Okay.  Have you ever had a patient
17   of yours, that you were seeing for a neurology
18   issue, that happened to undergo a catheter
19   ablation for a rhythm disturbance?
20         A.    Yes.  Not very many.  Certainly
21   less than half dozen.  They've all been at the
22   Cleveland Clinic.  I can't tell you the names
23   of the people who have done it.  There's been
24   people with abberant conduction systems,
25   Wolff-Parkinson White disorder who have
0038
 1   undergone ablation.
 2         Q.    Now, is this back when you were at
 3   the Cleveland Clinic or since you've left the
 4   Clinic?
 5         A.    Both.
 6         Q.    Okay.  So you recall having
 7   interaction -- let me start again.
 8               You recall when you were at the
 9   Cleveland Clinic as a neurologist that you had
10   patients undergo catheter ablation back then?
11         A.    I'm not even sure they were doing
12   catheter ablation back then.  They were doing
13   some ablation surgeries.  Some of these were
14   open procedures.  I'm not sure of the nature of
15   catheter ablation in those days.
16         Q.    So you cannot say that you had a
17   patient while you were at the Cleveland Clinic
18   undergo a catheter ablation?
19         A.    I'm sure one did.  This is for
20   Wolff-Parkinson White syndrome.  She was my
21   secretary, so I know what happened to her.  My
22   experience with that was not tremendous.
23         Q.    All right.  And the type of
24   procedure that your secretary had was an open
25   procedure or --
0039
 1         A.    Yeah.  Part of it was open, part of
 2   it was not.  It was complicated.  I'm not sure
 3   of all of the complexities.  I know it was a
 4   very complicated situation with multiple
 5   procedures.
 6         Q.    You were involved in that just as a
 7   bystander/friend as opposed to a treating
 8   physician?
 9         A.    Yes.  That's correct.
10         Q.    Since leaving the Cleveland Clinic
11   -- and you left when?
12         A.    '92.
13         Q.    Have you ever had a patient of
14   yours who underwent a catheter ablation?
15         A.    Yes, I have.  And I see such
16   patients.  Not very frequently.  They're
17   generally people who have had ablation
18   procedures for atrial fibrillation, as did
19   Mr. Sullivan.  I've seen them because of
20   stroke-related problems.
21         Q.    All right.  So you have how many
22   patients, would you say?
23         A.    I would say over many years, about
24   a half dozen of those.  Including a couple that
25   are still being treated.
0040
 1         Q.    All right.  So you think you've had
 2   about six patients, approximately?
 3         A.    Yes.
 4         Q.    Over what period of time?
 5         A.    In the last ten years.
 6         Q.    And are you involved at all in
 7   referring the patients for the catheter
 8   ablation or is that something that their
 9   cardiologist was involved and not you as the
10   neurologist?
11         A.    All of them involved cardiologists,
12   as far as I can remember, and all of them have
13   had stroke-related problems in spite of
14   treatment for both rhythm disturbances and clot
15   formation.  I would say they've been somewhat
16   difficult patients.
17         Q.    And the reason you've seen them is
18   because of the stroke complication?
19         A.    Yes.  Because stroke is an
20   extremely common event in atrial fibrillation.
21         Q.    Okay.  Did you see them because
22   they've had a stroke before cardiac ablation
23   due -- they had a stroke due to the A fib or
24   did these patients have strokes due to the
25   procedure or do you know?
0041
 1         A.    Well, it gets complicated.  Some
 2   have had strokes because of A fib before the
 3   procedure, some have had strokes because of A
 4   fib after the procedure.  The procedure doesn't
 5   always work.  Some of them are redos, some of
 6   them are people who need drug management in
 7   spite of having ablation or having ablations
 8   and pacemakers.  So it gets very complicated.
 9         Q.    Okay.  So, as you mentioned, the
10   fact that someone has atrial fibrillation, they
11   are potentially set up for a stroke in and of
12   itself?
13         A.    I don't know if set up is the right
14   word.  You have to put it in the right context.
15   The stroke rate in persons with atrial
16   fibrillation, particularly chronic atrial
17   fibrillation, is a multiple of some place
18   between 7 and 10 of the expected rate of stroke
19   in persons who don't have that condition.  So
20   it's frequent.
21         Q.    Okay.  Explain that to me.  You're
22   saying patients with atrial fibrillation,
23   because of the atrial fibrillation, they have
24   the risk of stroke?
25         A.    They have a heightened risk.  We
0042
 1   all have a risk.
 2         Q.    Okay.  We all have a risk, but one
 3   with atrial fibrillation has a heightened risk?
 4         A.    That's correct.
 5         Q.    And the heightened risk in someone
 6   with atrial fibrillation versus the general
 7   population you say is 7 to 10 percent?
 8         A.    No.  It's 7 to 10 fold the relative
 9   rate of people without that condition.
10         Q.    I see.  Okay.  So 7 to 10 times
11   that of --
12         A.    A controlled group.
13         Q.    A controlled group.  Okay.
14               And what is the yearly risk of
15   stroke for a patient who has atrial
16   fibrillation?
17         A.    Well, it's, again, 7 times the age
18   matched risk for somebody who is their same age
19   and have the same condition.  So it's a
20   relative number.  It's not an absolute.
21         Q.    Okay.  Is there -- are you aware of
22   quoted statistics as far as what the yearly
23   rate or risk of having a stroke in a patient
24   with A fib is?
25         A.    Well, it is age related.  It's
0043
 1   compounded by associated diseases.  On an
 2   average -- in a young woman, if it's 1 in
 3   1,000, that's 7 in 1,000, 10 in 1,000, that is
 4   100.  There's tremendous literature written on
 5   this in which numbers are conjured up in all
 6   kinds of ways.  The most famous, and everybody
 7   knows about it, is referred to in materials.
 8   Stroke prevention in atrial fibrillation.  That
 9   really established the efficacy of treatment
10   over all age spectra in stroke prevention.  It
11   lists all groups at all risk levels and ages is
12   over 65 percent.
13         Q.    So, are you able to quote for me
14   the risk of a patient -- a yearly risk of a
15   patient in someone of Mr. Sullivan's age with A
16   fib of having a stroke?
17               MR. MISHKIND:  Well, let me object.
18   You're just talking about age?  No reference to
19   whether -- what their CHADS2 score is, no
20   reference to whether they're treated or not?  I
21   mean, you're asking to take just age only
22   irrespective of all the other factors?
23               MS. CARULAS:  (Nodding head.)
24               MR. MISHKIND:  Really?  Okay.
25         A.    That's very hard to do.  That would
0044
 1   be guesswork on my part.  If you take a person
 2   of middle age and use the number five as a base
 3   for atrial fibrillation, that becomes two or
 4   one and a half for treated people.  It gets far
 5   more complicated than that very quickly.
 6         Q.    Okay.  So you're saying roughly a
 7   one to two percent risk of stroke per year in a
 8   treated --
 9         A.    No.  That's not what I said.
10         Q.    You've got to wait until I finish
11   my question.
12         A.    Yeah.  I know.  But your question
13   starts off with a wrong assumption.  Go ahead.
14         Q.    Okay.  Just tell me, are you able
15   to give an opinion as to what the yearly risk
16   of stroke is all comers with A fib?  First of
17   all, can you give a number for that?
18               MR. MISHKIND:  Objection.
19               You can answer.
20         A.    I suppose an aggregate number is
21   present.  But again, it depends on age,
22   disease, hypertension, forms of treatment and
23   so forth.  So I'd have to go back and look.
24   That's not an easy answer.
25         Q.    Okay.  Many factors --
0045
 1         A.    Yes.
 2         Q.    -- that go into being able to quote
 3   a specific percentage?
 4         A.    That's right.
 5         Q.    Okay.  For Mr. Sullivan, given --
 6   looking at him, prior to him coming in for the
 7   catheter ablation, do you have an opinion,
 8   given all of his factors, what his yearly risk
 9   of a stroke was?
10               MR. MISHKIND:  Objection.
11         A.    As best I can recall, and forgive
12   me if I'm not recalling correctly, it might
13   harbor around two percent if he's treated.
14         Q.    Two percent if treated?
15         A.    If treated.
16         Q.    Okay.  And when --
17         A.    And a lot more, maybe 7 or 10
18   percent, if he's not treated.
19         Q.    Okay.  I understand.  About two
20   percent if he's treated.
21               And when you say if treated, what
22   do you refer to with that?
23         A.    Anticoagulation.
24         Q.    Okay.  And if not being
25   anticoagulated, 7 to 10, roughly?
0046
 1         A.    Roughly.  But again, I don't want
 2   to be hedged into those numbers as concrete
 3   numbers because they are not.  Okay?  I'm
 4   talking about relative risk reductions.  Okay?
 5         Q.    Okay.
 6         A.    That's as good as you get.
 7         Q.    All right.  And you would agree
 8   that, I think you touched on this, that while
 9   anticoagulation can decrease once's risk for a
10   stroke, it does not eliminate the risk of a
11   stroke?
12         A.    That's correct.  Again, there's a
13   risk of a stroke in everybody that's
14   irreducible.  With treatment it's a tad higher
15   than that.  Without treatment, without
16   anticoagulation, it's many times that.  So the
17   risk reduction is substantial with
18   anticoagulation, particularly Coumadin
19   anticoagulation.  That's the standard of care.
20         Q.    And we know in this particular case
21   Mr. Sullivan had -- from the description of a
22   layperson, he had a large stroke?
23         A.    He had a very large stroke, yes.
24   That's very fair to say.
25         Q.    How is it that, as a specialist in
0047
 1   strokes, some patients have minor strokes and
 2   some have large stroke?
 3         A.    Well, it all depends on the volume
 4   of brain involved.  That's the fundamental
 5   factor.  Not only degree of deficit, but
 6   survivability.  Now, there are variations out
 7   there that have to do with topography.  But in
 8   general, the larger volume of the brain
 9   involved, the more devastating the effect is
10   upon disability.
11         Q.    Can you predict whether a given
12   stroke will affect a larger amount of brain or
13   not?
14         A.    In general, you can.
15         Q.    Cannot?
16         A.    You can.  In general, you can.
17         Q.    Can.
18         A.    Now, there are variations that are
19   easily cited.  But in general, if very large
20   vessels, such as the internal carotid, the
21   middle cerebral artery, basal artery or one of
22   the large cerebellar vessels are occluded, then
23   the volume of brain removed will be greater
24   than were a small vessel occluded.  Occlusion
25   isn't the only factor.  With occlusion of a
0048
 1   large volume of brain comes swelling and
 2   secondary effects that have to do with the
 3   propagation of brain necrosis with
 4   compartmental shifts, intracranial pressure
 5   rises and so forth.  And this is what happened
 6   to him.
 7         Q.    I'm sure you've seen over your
 8   career patients that have had small strokes?
 9         A.    Yes.
10         Q.    And patients that have
11   unfortunately had very large strokes?
12         A.    I have.
13         Q.    So the main factor there is -- I
14   know he had -- he had strokes in more than one
15   distribution of the brain?
16         A.    That's correct.
17         Q.    So as far as being able to predict
18   where a clot will embolize, whether it will
19   affect a major part of the brain or a small
20   part of the brain?
21         A.    No.  That's very predictable.
22         Q.    Okay.
23         A.    If you know which vessels are being
24   occluded you can be pretty accurate about what
25   kind of deficits may arise from it.  The degree
0049
 1   of deficit trending secondary brain swelling
 2   and the like is harder to predict.  When that
 3   occurs, as it did in him, it's generally
 4   necessary to remove a portion of the skull, a
 5   portion of the brain.  Those patients will
 6   certainly undergo what anyone, I think, would
 7   admit is a horrific and heroic procedure.  But
 8   it can be lifesaving.
 9         Q.    Okay.  I know you mentioned in your
10   report that he suffered extensive and near
11   fatal sequelae requiring extraordinary medical
12   care, craniotomies and an abundant removal of
13   brain tissue?
14         A.    That's correct.
15         Q.    Okay.  So he did have extraordinary
16   care which saved his life?
17               MR. MISHKIND:  Objection.
18         A.    That's my opinion.
19         Q.    Okay.  Are you able to -- you
20   mentioned that you know of about six patients
21   of yours that have had strokes either as a
22   result of the A fib itself or secondary to
23   catheter ablations.  Well, let me start over.
24               You probably know more patients
25   than the six that have had strokes due to A
0050
 1   fib?
 2         A.    Yes.
 3         Q.    Okay.  Can you approximate for me
 4   how many patients over your career that have
 5   had strokes due to atrial fibrillation?
 6         A.    Oh, gosh.  It goes back a long
 7   time.  I'd say more than 50.  It's that way
 8   because this is not an uncommon cause of
 9   stroke.
10         Q.    Okay.  Have any of those -- when
11   you say more than 50, 100 or --
12         A.    I don't know.  A lot.
13         Q.    A lot.  Okay.  And have any of
14   those strokes due to the atrial fibrillation
15   been as significant as Mr. Sullivan's stroke?
16         A.    Significant in what way?  Requiring
17   a craniotomy?
18         Q.    Right.
19         A.    I recall one other person that I
20   saw at the extended care campus, Heather Hill,
21   that was in about the same shape.  It did not
22   involve catheterization, just a very, very
23   large stroke.  I recall a couple women from the
24   same institution that had the same sort of
25   thing.  And I don't know if I recall if it
0051
 1   required decompressive craniotomy, but I've
 2   certainly seen people with devastating strokes.
 3   A stroke can be just as devastating without
 4   removal of part of the brain.
 5         Q.    Okay.  So no question you've seen
 6   devastating strokes in patients with atrial
 7   fibrillation?  As a result of the atrial
 8   fibrillation?
 9         A.    Yes.
10         Q.    So the number of approximately six
11   patients that you mentioned to me a little bit
12   ago were patients that have actually had a
13   catheter ablation for atrial fibrillation?  Or
14   do you think they, perhaps, would have been
15   open procedures?
16         A.    I can't think of a patient with an
17   ablation procedure, open or otherwise.  I'm
18   just not that familiar or recollecting just how
19   the ablations were done.  I've not seen another
20   one who required a craniotomy and brain
21   removal.
22         Q.    Okay.  But you are aware of about
23   six patients who have had strokes you believe
24   secondary to --
25         A.    Atrial fibrillation.
0052
 1         Q.    Oh.  Atrial fibrillation?
 2         A.    Yeah.
 3         Q.    Maybe I misunderstood you earlier.
 4               Have you, yourself, cared for any
 5   patients who have had a stroke after a
 6   catheter-based ablation for the atrial
 7   fibrillation?
 8         A.    No.  Not after -- not the kind of
 9   stroke he had.  I've seen people who've had
10   strokes after ablation procedures, but they've
11   not required removal of their --
12         Q.    Okay.  I want to talk all strokes.
13   Okay?
14         A.    Okay.
15         Q.    Do you believe you, Dr. Conomy,
16   have seen patients who have suffered -- who
17   suffered a stroke, small, large, any type of
18   stroke, after a catheter ablation for atrial
19   fibrillation?
20         A.    Yes.  I've seen people who have
21   suffered strokes after catheter ablation.  The
22   one I'm recollecting -- and there may be more
23   than one, I don't have a file in front of me at
24   all -- was sometime after the catheter
25   ablation.
0053
 1         Q.    Okay.  So -- I know earlier you
 2   mentioned six.  That was talking more in
 3   general with atrial fibrillation?
 4         A.    Yes.
 5         Q.    Which is more -- greater 50?
 6         A.    Right.  Greater than what?
 7         Q.    You told me you've seen greater
 8   than 50 --
 9         A.    Yeah.  Right.  But I can't
10   remember.
11               MR. MISHKIND:  Doctor, you've got
12   to wait until Anna is finished.
13         A.    Yeah.  I can't remember the
14   specifics of all of them.  Go ahead.
15         Q.    Okay.  I want to make sure I
16   understand.  When I leave here I don't want to
17   read your transcript over and say, what the
18   heck was he saying.
19         A.    You probably will anyhow.
20         Q.    I'm just talking about some of the
21   big words you used.  That's --
22               MR. MISHKIND:  A little cross talk.
23               MS. CARULAS:  Yeah.
24         Q.    Originally when I asked you have
25   you seen any patients who have undergone
0054
 1   catheter ablations for atrial fibrillation who
 2   have had a stroke and you said approximately
 3   six -- let me finish.
 4         A.    All right.
 5         Q.    Then we talked about how you
 6   believed -- but as you sit here and reflect
 7   further you can think of one patient that has
 8   had a stroke after a catheter ablation; is that
 9   fair?
10         A.    That's correct.
11         Q.    Okay.  And the six you were talking
12   about earlier was in reference to what?
13         A.    They're people who reverted to
14   atrial fibrillation in spite of this.  Some of
15   them -- I can't remember how many had
16   pacemakers, but they had strokes anyhow.  They
17   didn't have it at the same time or same setting
18   as Mr. Sullivan did.  I don't recall seeing
19   anybody just like Mr. Sullivan.
20         Q.    Okay.  So the approximately six
21   you're talking about are patients who had a
22   catheter ablation, unfortunately reverted back
23   into the abnormal rhythm --
24         A.    Correct.
25         Q.    -- which is a known phenomenon,
0055
 1   correct?
 2         A.    Um-hmm.
 3         Q.    You need to say yes or no.
 4         A.    Yes.
 5         Q.    And then subsequently they had a
 6   stroke due to their A fib?
 7         A.    Correct.
 8         Q.    All right.  But you feel you've
 9   only seen over your career one patient who you
10   felt a stroke was in -- somehow related to the
11   ablation procedure as opposed to the underlying
12   A fib disease?
13         A.    I'm not sure what it was.  It was a
14   late middle-aged barber undergoing a procedure
15   like this who died on the table of, I believe,
16   a stroke.  Again, I've never seen anyone with
17   this procedure either.  This is a new and
18   purportedly experimental procedure.
19         Q.    I thought you mentioned a minute
20   ago -- you said this patient died on the table.
21   A minute ago you said it was a patient that had
22   a stroke quite sometime down the road after the
23   procedure.
24         A.    The other ones I've seen have had
25   strokes down the road.  In spite of ablation
0056
 1   procedures, that couldn't be controlled even
 2   with pacemakers and drugs.  They had
 3   fibrillation recur and had strokes.  That is
 4   not uncommon.
 5         Q.    Okay.  So as far as being able to
 6   say that any patients of yours that have
 7   undergone catheter ablation for A fib, are you
 8   able to say that any of those patients had a
 9   stroke secondary to the procedure?
10         A.    Not other than the ones we've
11   talked about.  The one on the table and this
12   man, Mr. Sullivan, who was not a patient.  The
13   others I don't think had it as a direct result
14   of the procedure.
15         Q.    Okay.  So we have Mr. Sullivan, who
16   is not your patient?
17         A.    Right.
18         Q.    We have this other patient who you
19   say died on the table?
20         A.    Um-hmm.
21         Q.    Yes?
22         A.    Yes.
23         Q.    When was this?
24         A.    This was several years ago.
25   Probably five.
0057
 1         Q.    And had this patient seen you
 2   beforehand?
 3         A.    No.
 4         Q.    When did you become involved in the
 5   case?
 6         A.    When he turned for the worse.
 7         Q.    So you were called in --
 8         A.    As a consult.  He was kept alive,
 9   but died.
10         Q.    Okay.  I thought you said he died
11   on the table?
12         A.    Well, he quite did.  He was
13   resurrected and kept ventilated for a while.
14         Q.    Okay.  And where -- this was about
15   five years ago?
16         A.    Um-hmm.
17         Q.    So in the early 2000s?
18         A.    Um-hmm.
19         Q.    Where did this take place?
20         A.    At the Clinic.
21         Q.    And you were called in as a
22   consult?
23         A.    (Nodding head.)
24               MR. MISHKIND:  That's a yes?
25         A.    Me, an ex-member of the tribe, was
0058
 1   called in as I am today --
 2         Q.    Okay.
 3         A.    -- for a related problem.
 4         Q.    All right.
 5         A.    And this is usually at the request
 6   of another physician or the family or someone.
 7   I'm pleased to do it.
 8         Q.    Okay.  And who called you in for
 9   this patient?
10         A.    The doctor.  I can't remember who
11   it was.  You know the way it works.  The family
12   asks the doctor to call somebody, the doctor
13   agrees with them and does it.
14         Q.    Okay.  Who was the
15   electrophysiologist who performed this
16   procedure?
17         A.    I don't know.
18         Q.    Who was the -- did you have some
19   personal relationship with this patient or the
20   patient's family?
21         A.    Both.
22         Q.    Okay.  But you'd not seen the
23   patient beforehand?
24         A.    No.
25         Q.    And you're saying this was a
0059
 1   personal friend basically?  You knew the family
 2   and --
 3         A.    My barber.
 4         Q.    Oh.  Your barber.  I see.
 5         A.    When I needed one.  I have given up
 6   that luxury.
 7         Q.    Okay.  So you were then called in
 8   for this --
 9         A.    Disaster.
10         Q.    Disaster.  Okay.  Tell me about the
11   circumstances.
12         A.    I just have, I think.  Problem in
13   the course of ablation and had a fatal stroke.
14         Q.    Okay.  And the name of this
15   gentleman?
16         A.    I can't tell you.  I'm sorry.
17         Q.    Can't tell me for -- why?
18         A.    Well, it's a confidential matter.
19   I can't discuss other patients --
20               MR. MISHKIND:  Aren't you familiar
21   with the barber-physician privilege?
22               MS. CARULAS:  Okay.  Here you go.
23         Q.    Okay.  But as far as the details of
24   what that procedure involved, who was involved,
25   unable to comment on that?
0060
 1         A.    No, I can't.
 2         Q.    And the nature of the stroke that
 3   happened, that you say led to the patient's
 4   demise, do you remember any of the details of
 5   that?
 6         A.    It was a brain stem stroke.
 7         Q.    And how long did the patient live
 8   after that?
 9         A.    Not long.  A few hours.
10         Q.    Okay.  So that would be your only
11   -- your barber is your only experience of a
12   patient who has undergone an --
13         A.    An acute event.
14         Q.    -- acute event?
15         A.    Acute fatal or near fatal event.
16   That's my experience with it.
17         Q.    All right.  Now, as far as what
18   would be considered the -- I know you said
19   you're not going to give opinions as to the
20   standard of care for an electrophysiologist,
21   but are you in general aware of the -- let me
22   ask you this.
23               As far as what the risks are of an
24   ablation procedure for atrial fibrillation,
25   would you defer to an electrophysiologist as
0061
 1   far as the specific listing of the risks?
 2         A.    Well, yes, I would.  The risks are
 3   well known and published.  They're predictable.
 4   They're not very odd things.  They have to do
 5   with mechanical manipulation, tissue injuries,
 6   precipitation of other arrhythmias and so
 7   forth.  It's hard to imagine.  They're well
 8   published, I think.
 9         Q.    Okay.  But as far as actually
10   listing the risks and the percentage likelihood
11   of a complication due to a catheter ablation
12   procedure, you would defer to an
13   electrophysiologist?
14         A.    Yes, I would.
15         Q.    That was yes, I would?
16         A.    Yes.  Yeah.
17         Q.    In general, however, you would
18   agree that stroke is a well known and
19   recognized complication of the procedure?
20         A.    Yeah.
21               MR. MISHKIND:  Let me just object.
22   When you say of the procedure -- just so the
23   record is clear, when you say the procedure, he
24   may be talking generically.  I'm not sure
25   you're talking specifically --
0062
 1               MS. CARULAS:  I'll rephrase it.
 2               MR. MISHKIND:  Excuse me.  As it
 3   relates to the procedure that was done in this
 4   case.
 5         Q.    Okay.  You're familiar with the
 6   type -- in general terms, you understand the
 7   procedure that was performed in this case?
 8         A.    I do.
 9         Q.    Fair enough that you do not hold
10   yourself out as having special expertise in
11   that particular procedure?
12         A.    I am not.
13         Q.    As a general known concept,
14   however, you were aware that the type of
15   procedure that Mr. Sullivan underwent at the
16   Cleveland Clinic carries with it the well known
17   and recognized complication of stroke?
18               MR. MISHKIND:  Objection.
19         A.    It's a known complication.
20   Procedures like the one he had, yes.
21         Q.    Okay.  And before you had mentioned
22   how anticoagulation in general can diminish the
23   risk of a stroke in A fib.
24               We talked about that, correct?
25         A.    Yes.
0063
 1         Q.    You would agree with the general
 2   concept that while anticoagulation may decrease
 3   the risk of a stroke during a procedure such as
 4   Mr. Sullivan underwent, that anticoagulation
 5   cannot eliminate all risks of stroke from this
 6   procedure?
 7               MR. MISHKIND:  Objection.
 8               MR. KULWICKI:  Objection.
 9         A.    Yes.  I recognize that.
10         Q.    Now, there are a number of other
11   experts in this case that have authored
12   reports.
13               MR. MISHKIND:  I'll save you the
14   time.  He hasn't seen any of them.  You can go
15   ahead and ask, but he's not seen any of the
16   expert reports.
17               MS. CARULAS:  Okay.
18               MR. KULWICKI:  Crowly.
19               MR. MISHKIND:  That's the
20   physiatrist.
21               MR. KULWICKI:  Oh.
22               MS. CARULAS:  Okay.  I appreciate
23   the heads up.
24         Q.    You --
25               MR. MISHKIND:  Other than Crowly,
0064
 1   the physiatrist, he hasn't seen any of the
 2   standard of care or causation.  Crowly is
 3   physiatry.
 4               MS. CARULAS:  Okay.
 5         Q.    All right.  You agree with what
 6   Mr. Mishkind just said?  You have been provided
 7   with a report of a physiatrist by the name of
 8   Crowly, correct?
 9         A.    I have.
10         Q.    There are a number of other
11   individuals and specialists who have written
12   reports in this case.
13               You have not seen any other
14   reports?
15         A.    I've seen no other expert reports.
16         Q.    Okay.  There is a neurologist by
17   the name of Steven, S-T-E-V-E-N, Levine, M.D.
18               Do you know Dr. Levine?
19         A.    I think he's the head of the Stroke
20   Service at New York.  Which institution?
21         Q.    Okay.  According to a report here,
22   he is at the University Hospital of Brooklyn.
23         A.    Okay.
24         Q.    Do you know him?
25         A.    Yeah.  Well, I've seen him at
0065
 1   meetings and heard him speak.  I'm not
 2   personally entwined with him.
 3         Q.    Okay.  Are you familiar with a
 4   gentleman by the name of David Callans,
 5   C-A-L-L-A-N-S?
 6         A.    No, I'm not.
 7         Q.    Okay.  Are you familiar with a
 8   gentleman by name of John S. MacGregor,
 9   M-A-C-G-R-E-G-O-R?
10         A.    No.  Lassie.
11         Q.    I'm sorry?
12         A.    No, I'm not.
13         Q.    I missed it.
14         A.    Lassie MacGregor.  No, I'm not
15   familiar with Dr. MacGregor.
16               MR. MISHKIND:  When you refer to a
17   gentleman, it's Dr. MacGregor.
18               MS. CARULAS:  Yeah.  I mean, I --
19               MR. MISHKIND:  Just so he -- he
20   might know a gentleman by the name of
21   Mr. MacGregor that's not a physician.
22               MS. CARULAS:  He's both a gentleman
23   and doctor, I would assume.
24               MR. MISHKIND:  That's right.  They
25   usually go hand in hand, don't they?
0066
 1         Q.    Are you familiar with a doctor and
 2   a lawyer, you know those types, by the name of
 3   Robert S. Chabon, C-H-A-B-O-N?
 4         A.    No.
 5         Q.    Are you aware of a Ph.D. doctor by
 6   the name of Jonathan Marino?
 7         A.    No, I'm not.
 8         Q.    Okay.
 9         A.    But I'd like to be with all of them
10   if it's necessary.
11         Q.    Well, if you want to spend your St.
12   Patty's Day with us, you can go ahead and read
13   it.
14               Have you, sir, taken any notes at
15   all?
16         A.    No, I've not.
17         Q.    I think we've touched on this.
18               While you see patients who have had
19   a stroke as perhaps a sequelae of atrial
20   fibrillation, you, yourself, do not hold
21   yourself out as an expert in the management of
22   atrial fibrillation?
23         A.    Not of the atrial fibrillation.
24   I'm certainly familiar with it.  In the context
25   of stroke and in the management of
0067
 1   anticoagulation for people who are suffering or
 2   might suffer or have suffered, I am.  But not
 3   in the management of a cardiac arrhythmia, per
 4   se.
 5         Q.    Okay.  And so if you had a patient
 6   of yours who somehow you determined they had an
 7   abnormal rhythm under examination, for
 8   instance, where you suspected due to
 9   symptomotology that they had atrial
10   fibrillation, for the management of that you
11   would refer them to an electrophysiologist?
12         A.    Well, to a cardiologist, yes.
13         Q.    Okay.  And you understand that a
14   cardiologist would refer the patient to an
15   electrophysiologist --
16         A.    Not necessarily.  There's many
17   patients --
18         Q.    You don't even know what I'm asking
19   you.  You need to wait until I finish my
20   question.
21               Okay?
22               MR. MISHKIND:  He was just
23   anticipating your question.
24         A.    I thought you were done.  I was
25   hoping you were done.
0068
 1         Q.    Yeah.  I believe that.
 2               MR. MISHKIND:  A lot of people are
 3   feeling that way.
 4               MS. CARULAS:  Yeah.
 5         A.    I'm sorry.  Go ahead.
 6         Q.    Everyone in the room.  That's okay.
 7   I can take it.
 8               MR. MISHKIND:  You've got thick
 9   skin, right?
10               MS. CARULAS:  Yeah.
11         Q.    You understand that if a patient is
12   desirous of having an ablation procedure for
13   atrial fibrillation, that a cardiologist refers
14   the patient to an electrophysiologist?
15               MR. MISHKIND:  Objection.
16         A.    Well, the cardiologist better agree
17   that's it desirous, too, because most patients
18   won't require electrophysiological ablation for
19   atrial fibrillation.  They can be treated by
20   other means.
21         Q.    Okay.
22         A.    Now, if it resists that and it
23   turns out to be in the patient's interest to
24   have it done, yes.
25         Q.    Then that cardiologist would refer
0069
 1   the patient to an electrophysiologist?
 2         A.    That's certainly possible, yes.
 3         Q.    Okay.  All right.  If we can, let's
 4   look at your report.
 5         A.    I've got it.
 6         Q.    All right.  You list here what
 7   you've described as seven opinions, correct?
 8         A.    That's right.
 9         Q.    And the first opinion is in the
10   course of PAVI -- what do you mean by PAVI?
11         A.    That's the procedure.
12         Q.    Okay.  What do the initials stand
13   for?
14         A.    Hold on a minute here.  So I get
15   all of my -- all right.  Pulmonary vein antrum
16   isolation.
17         Q.    Okay.  So the record will just
18   reflect, you looked at an article --
19         A.    Yes.
20         Q.    Let me -- wait until I'm finished.
21         A.    Yes.
22         Q.    Let the record reflect you just
23   referred to one of the Cleveland Clinic
24   articles to look at the initials, correct?
25         A.    Right.
0070
 1         Q.    Actually, it should be PVAI?
 2         A.    Yes.  But that's what it is.
 3         Q.    All right.  So this is either a
 4   typo or a --
 5         A.    Whatever.  We all know what we're
 6   talking about, so please.
 7         Q.    Okay.  In the course of -- you have
 8   PAVI, Shannon Sullivan obligately --
 9         A.    Obligately.
10         Q.    -- acquired a thrombogenic lesion
11   of his left cardiac atrium?
12         A.    That's right.
13         Q.    What do you mean by -- how do you
14   pronounce it?
15         A.    How do I what?
16         Q.    Obligately?
17         A.    Obligately.
18         Q.    Okay.
19         A.    Which is a real English word.
20               What would you like?
21         Q.    Yeah.  I'm just curious.
22               In plain English, what are you
23   saying there?
24         A.    Well, it's -- part of the procedure
25   is mechanical injury to the endothelium portion
0071
 1   of the region of entry of the pulmonary vein
 2   into the left atrium.  That's how it's done.
 3         Q.    Okay.  By that you mean necessary,
 4   compulsory, is what you're --
 5         A.    Yes.  Obligately.  Obliged.
 6         Q.    All right.  So your position here
 7   -- your opinion is that he developed a lesion
 8   in the left cardiac atrium?
 9         A.    Yes.
10         Q.    During the procedure?
11         A.    Yes.
12         Q.    Okay.  And are you able to say, to
13   a reasonable degree of medical probability,
14   what the mechanism of this thrombogenic
15   lesion --
16         A.    He has catheter manipulation and
17   then he has some sort of magnetized electronic
18   ablation of the conduction system that starts
19   at the endothelium and goes to the conduction
20   fibers.
21         Q.    What did you say about the
22   magnetic?
23         A.    It's stimulated and produces energy
24   that destroys the conduction fibers.  That's
25   injury to heart tissue.
0072
 1         Q.    Okay.  Talking about the details of
 2   this procedure, I think we've already touched
 3   on this, this is not really your area of
 4   expertise, to be able to explain how the
 5   various instruments work and so forth?
 6         A.    I know how they work.  By producing
 7   injury to cardiac tissue.  That's how they
 8   work.
 9         Q.    Okay.  Other than that generalized
10   statement, that's the extent of what you mean
11   by this number one?
12         A.    Yes.  That's the extent of what I
13   mean by that.
14         Q.    Okay.  As far as the actual
15   underlying mechanism of how the equipment does
16   what?
17         A.    I'm not familiar with the
18   equipment, but I know what it does.  And that's
19   what it does.
20         Q.    Okay.  So you're saying just the
21   equipment itself causes a lesion?
22         A.    Yes.
23         Q.    Okay.  And when you say it's a
24   thrombogenic lesion, what do you mean by that?
25         A.    Well, any injury to cardiac
0073
 1   endothelium is a cellular injury and they are,
 2   by definition, thrombogenic.  Injure an
 3   endothelial surface and get thrombogenesis.
 4         Q.    Okay.  So by thrombogenic, you're
 5   saying potentially thrombogenic?
 6         A.    No.  I said thrombogenic.
 7         Q.    All right.  Now, you talk about
 8   this was the left cardiac atrium?
 9         A.    Um-hmm.
10         Q.    Correct?
11         A.    Yes.
12         Q.    In your opinion, was the source of
13   this clot from the left atrium?
14               MR. KULWICKI:  Objection.
15         A.    Yes.
16         Q.    And why is that?
17         A.    Well, it enters the left ventricle
18   before it enters the aorta and then the carotid
19   artery.  There's a possibility that because he
20   also had a robotic lesion on the right side and
21   he did have in the performance of this
22   left-sided lesion a transluminal puncture of
23   the septum, I suppose it's possible that a
24   smaller clot could have gotten through there or
25   a small clot that then became propagated.  The
0074
 1   point is that there's enough tissue injury
 2   going on in the heart to put that clot in the
 3   left atrial chamber, hence in the left
 4   ventricle and hence in his brain.
 5         Q.    Are you able to say, to a
 6   reasonable degree of medical probability, that
 7   any of the procedure on the right side of the
 8   heart caused or contributed to the stroke?
 9         A.    Well, to any degree, yes.  But I
10   think it's a smaller probability of a de novo
11   lesion on the left side.
12         Q.    All right.
13               MS. CARULAS:  Can you read that
14   back to me?
15                    (Record read.)
16         A.    I think it's a smaller probability
17   than a de novo lesion on the right side.
18         Q.    Okay.  Early on, a little bit ago
19   you said possibility.  I just want to make sure
20   I understand.  Are you saying -- it's fine.
21   It's your opinion.
22               Are you saying that you have an
23   opinion, to a reasonable degree of medical
24   probability, that any intervention that took
25   place on the right side of the heart caused or
0075
 1   contributed to this stroke?
 2               MR. MISHKIND:  Let me just object.
 3   I think you mischaracterized what he said
 4   before.  But the record will speak for itself.
 5         A.    I believe I said it's a lesser
 6   probability that this clot arose on the right
 7   side of the heart.
 8         Q.    Okay.  So you're unable to say to a
 9   greater than 50 percent probability that any
10   procedure on the right side of the heart
11   contributed to this stroke?
12               MR. MISHKIND:  Objection.
13         A.    I think it's a lesser probability
14   than the one on the left side, yes.  That's
15   what I said.  Okay?
16         Q.    Okay.  I just want to know your
17   opinion when you are saying lesser probability.
18         A.    That's what I said.  Lesser
19   probability.
20         Q.    Okay.  What is a lesser
21   probability?
22         A.    It's lesser than one being on the
23   left side.
24         Q.    Okay.  So you're unable to say, to
25   a reasonable degree of medical probability,
0076
 1   which is greater than 50 percent, that anything
 2   on the right side of the heart contributed to
 3   this stroke?
 4               MR. MISHKIND:  Objection.
 5         A.    That's not what I said.  That's
 6   what you said.
 7         Q.    Okay.
 8         A.    I said what I said.  I think it's
 9   more likely to have this originate on the left
10   side than on the right ride.
11         Q.    Okay.  Why?
12         A.    That's all I said.  That's all I
13   can say.
14         Q.    All right.  Are you able to give a
15   percentage likelihood that you believe this
16   happened from the right side versus the left
17   side?
18         A.    No.
19         Q.    Okay.  And maybe we're talking back
20   and forth.  As I leave here today I want to
21   make sure I understand.
22               You will not be telling this jury
23   that you believe, to a reasonable degree of
24   medical probability, that the procedure on the
25   right side of the heart proximately caused this
0077
 1   stroke?
 2               MR. MISHKIND:  Objection.
 3               Go ahead.
 4         A.    I think it's less probable than a
 5   lesion arising de novo on the left side.
 6         Q.    Okay.  Now, do you have any
 7   understanding as to -- so, what you're saying
 8   is you believe a clot developed during the
 9   procedure, correct?
10         A.    Yes.
11         Q.    Okay.  And you understand that
12   there was imaging done prior to the procedure
13   and there was no evidence of a clot --
14         A.    I understand that.
15         Q.    -- in the left atrium, correct?
16         A.    I understand that.
17         Q.    And do you know in the left atrium
18   what area in particular is the source of
19   embolization in patients with A fib?
20         A.    It can be anywhere in the left
21   atrium.  The atrial appendage harbors a good
22   many of them.  They can be anywhere in the left
23   atrium.  In somebody who's had -- I don't mean
24   to diminish it, but let me call it fiddling at
25   the entry of the pulmonary veins.  That's not
0078
 1   up in the atrium.  That's in the chamber
 2   itself, the posterior wall.  So it can be
 3   anywhere within the atrium.
 4         Q.    All right.  Is it your
 5   understanding that the left atrial appendage is
 6   the primary source?
 7         A.    No, it's not.  My notion is that
 8   it's probably associated with the area that's
 9   been instrumented in the course of ablating
10   conduction fibers in the AV node.
11         Q.    And when you're talking about the
12   area that is being instrumented, that you
13   believe is the primary source or site of
14   embolization, what area is that?
15         A.    Well, it's the primary source of
16   thrombus formation.
17         Q.    Okay.  All right.  And what
18   specific area do you believe that is?
19         A.    The atrium.  Near the entry of the
20   pulmonary veins into the left atrium.
21         Q.    Which you say is different than the
22   left atrial appendage?
23         A.    Yes.  Different than the left
24   atrial appendage.
25         Q.    All right.  So would you be
0079
 1   surprised if the literature states that the
 2   left atrial appendage is the source of
 3   embolization in 90 percent of patients with A
 4   fib?
 5         A.    No, I wouldn't be.  But 90 percent
 6   of people with A fib don't have an embolus from
 7   a procedure.  With chronic atrial fibrillation
 8   the atrial appendage is -- and this is
 9   particularly true of people who have valvular
10   heart disease, other congenital valve
11   deformities and so forth.  But that's not the
12   case here.  So, I don't believe that's the case
13   here.
14         Q.    Okay.  Now -- but regardless, we
15   know that the area of the left atrium and the
16   left atrial appendage was imaged --
17         A.    Yes.
18         Q.    -- and was negative pre-procedure?
19         A.    Yes.  I know that.
20         Q.    Okay.  Now, looking at this patient
21   prospectively we know -- you mentioned that
22   patients with A fib have a risk of stroke and
23   this procedure itself carries with it the risk
24   of stroke?  We've been through that, correct?
25         A.    Yes.
0080
 1               MR. MISHKIND:  Objection.
 2               MR. KULWICKI:  Asked and answered.
 3         Q.    As you look at Mr. Sullivan
 4   prospectively, where would he have fallen in as
 5   far as being at risk for a stroke?
 6         A.    What?  Well, I'm not sure how to
 7   answer your question, but I'll try.  Something
 8   around 2 million people will have a stroke this
 9   year.  Something in the order of 200,000 will
10   have a so-called cardioembolic stroke and the
11   largest number of those are people who are
12   going to have thromboembolic disease, and the
13   largest number of those are people who are
14   going to have atrial fibrillation.  Let's just
15   take a minimum number.  Say it's somewhere in
16   the order of 100,000 strokes.  60 to 100,000
17   strokes per year.  Given an age match, because
18   he bears that, he's going to have an elevated
19   risk of stroke by virtue of what's wrong with
20   him.  He'll have risk reduction.  Not by fixing
21   the arrhythmia, but by Coumadin anticoagulation
22   by a relative reduction factor of about
23   two-thirds.  So that doesn't fix his arrhythmia
24   and it doesn't fix the cardiac problems of
25   cardiac insufficiency, of derivative
0081
 1   arrhythmias and so forth.  It prevents clot
 2   formation.  It doesn't dissolve clots, doesn't
 3   make them go away, but it does prevent clot
 4   formation that then becomes an embolus that
 5   goes to the brain.  I'm not sure I answered
 6   what you asked me or not.
 7         Q.    Okay.  Are you aware of what's
 8   called the CHADS2?
 9         A.    The what?
10         Q.    CHADS2 score.
11         A.    Yeah, I am.  But I can't tell you
12   all about it.  It's a scoring system that looks
13   at risk stratification.
14         Q.    Is that something you use or you
15   don't --
16         A.    No.  I think it's good for
17   epidemiology studies and so forth.  But it's
18   not a clinical scale.
19         Q.    Just so I understand, it's not
20   something you use in your practice?
21         A.    No.  It's not something I use in an
22   everyday practice.
23         Q.    Okay.
24         A.    It's useful kind of to match up to
25   clinical studies and epidemiologic studies.
0082
 1         Q.    So you're unable to say what Mr.
 2   Sullivan's chance --
 3         A.    You know, I can't --
 4         Q.    Wait.  You've got to wait until I
 5   finish my question.
 6         A.    Sure.
 7         Q.    You're unable to say what
 8   Mr. Sullivan's CHADS2 score was prior to this
 9   procedure, correct?
10         A.    When you're done talking you have
11   to stop talking.  Not keep talking after you
12   stop talking, so I can answer the question.
13   It's written in here what his CHADS score is.
14   I don't remember it.  But I can't determine it
15   as I sit here.
16         Q.    I'm going to ask it again.  When I
17   say correct at the end, that usually means then
18   -- we'll go from there.  I just want to have a
19   question and answer on the record.
20               You are unable to say, as we sit
21   here right now, what Mr. Sullivan's CHADS2
22   score was prior to the procedure, correct?
23         A.    I've said correct and I'll say
24   correct again.
25         Q.    Thank you.  Now, number 2 on your
0083
 1   report.  You say, at the time of his procedure
 2   and after it Mr. Sullivan was subliminally
 3   anticoagulated.
 4               Right?
 5         A.    Right.
 6         Q.    How do you define the word
 7   subliminally?
 8         A.    Well, I think the recommendation is
 9   that he should be carrying an INR value of 2 to
10   3.5.  This was 1.4.  So that's not going to
11   protect him.  Now, he was given Heparin during
12   the procedure.  It was reversed towards the --
13   during the procedure, which leaves him
14   anticoagulated.  And he's back to wherever he
15   was at the end of that procedure.
16         Q.    When you use the word
17   subliminally -- I looked that up in the
18   dictionary.  It's defined as below the
19   threshold of sensation or conscious awareness.
20   I think of subliminal as like a subliminal
21   advertisement.
22         A.    Well, I'm pleased to hear what you
23   think, but I'll go look that up again.  What I
24   mean by it is not enough.
25               What did you look it up in?
0084
 1         Q.    Well, how do you define subliminal?
 2         A.    Not enough.  Insufficient.
 3         Q.    Okay.  Did you mean suboptimal?
 4         A.    Could be.
 5         Q.    I'm not aware of subliminally being
 6   used at all in any of the literature on
 7   anticoagulation or treatment of A fib or
 8   anything of that nature.
 9               You stand by the use of
10   subliminally?
11         A.    Well, if you want to take a break
12   I'm sure I can go worm my way into some kind of
13   definition that will --
14         Q.    You're comfortable with that word
15   staying there?
16         A.    Well, I want you to be comfortable,
17   too.  I mean not enough.
18               MR. KULWICKI:  It's actually
19   properly used.  I have the definition right
20   here.  Another definition of subliminal is not
21   enough.
22               MR. MISHKIND:  Less than the
23   minimum intensity or duration required to
24   elicit a response.
25               MS. CARULAS:  Interesting.
0085
 1               What source?
 2               MR. KULWICKI:  Dictionary -- I
 3   don't know.  Some dictionary.  A medical
 4   dictionary.
 5               MS. CARULAS:  What's the name of
 6   it?
 7               MR. KULWICKI:  It's called the Free
 8   Dictionary.  It's the first one that popped up
 9   on my Android.
10               MS. CARULAS:  Okay.
11               THE WITNESS:  Can we take a break?
12               MS. CARULAS:  Okay.
13        (Thereupon, a short break was taken.)
14   BY MS. CARULAS:
15         Q.    So you brought with you a
16   dictionary?
17         A.    It's the Oxford English Dictionary.
18         Q.    Okay.
19         A.    You should bring one with you.
20   Now, let me have that and I'll put it away.
21         Q.    Okay.  You had pointed out here
22   that it says, below the threshold.  And then,
23   in parentheses, of consciousness, number 1.
24   I'm just going to read it.
25         A.    But you're reading it selectively.
0086
 1   Why don't you start at the beginning.
 2         Q.    Okay.  Subliminal.  Threshold.  And
 3   then it goes on to all the different --
 4         A.    You're not reading it.
 5         Q.    Number 1.  It's an adjective.
 6   Below a threshold or lower limit.
 7   Specifically, below the threshold of sensation
 8   or consciousness of a state supposed to exist,
 9   but not strong enough to be recognized.
10         A.    Okay.
11         Q.    Okay.  Is that your definition?
12         A.    My definition?  That's the Oxford
13   English Dictionary's definition.
14         Q.    Okay.
15         A.    Hopefully, it will be yours.  Now,
16   let me put this away.
17         Q.    Okay.  So your statement here that
18   the patient was subliminally anticoagulated,
19   you're talking about the Coumadin level?
20         A.    I am.
21         Q.    And so your statement is -- your
22   understanding -- at least your opinion -- let
23   me start over.
24               Your opinion is that Mr. Sullivan
25   was not -- was not adequately anticoagulated
0087
 1   during the procedure, correct?
 2         A.    Well, coming into it he was not.
 3   So he was not during until he got Heparin.
 4   Then he was.  There's a suggestion on one of
 5   the papers, I forget which one, on the
 6   pre-ablation care of patients, that they be
 7   anticoagulated adequately for a two-month
 8   period before the procedure.
 9         Q.    So the basis of your opinion that
10   -- and again we know you're not talking on what
11   is the standard of care for an
12   electrophysiologist, but your general premise
13   for your causation opinion is that he was
14   subliminally anticoagulated, correct?
15         A.    Subliminally, suboptimally,
16   insufficiently, not adequately, yes.
17         Q.    All right.  And the basis for you
18   saying that is the literature that was provided
19   to you by Mr. Kulwicki?
20         A.    Now, he had an INR of 1.4.  He had
21   an INR not sufficient to prevent clot
22   formation.
23         Q.    Okay.  So I understand, you've made
24   this statement, number 2, of subliminal,
25   suboptimal anticoagulation based on the
0088
 1   literature that Mr. Kulwicki provided to you
 2   and then the general statement that the INR was
 3   1.4, correct?
 4         A.    Yes.  Essentially correct.  Now,
 5   that literature about what is adequate is far
 6   more dispersed than Mr. Kulwicki's literature.
 7   But the answer is yes.
 8         Q.    Have you reviewed any other
 9   literature from other institutions or any
10   additional literature from the Cleveland
11   Clinic, other than what Mr. Kulwicki provided
12   to you on the issue of anticoagulation for this
13   procedure?
14               MR. MISHKIND:  Let me object as it
15   relates to reviewing literature from other
16   institutions.
17               But you can go ahead.
18         A.    This is what I have with respect to
19   this particular Cleveland Clinic procedure.
20   That's all I have.
21         Q.    Okay.  So what you're saying is,
22   because the INR was 1.4, was not optimally
23   anticoagulated up to the time of the procedure,
24   number 1, correct?
25         A.    That's correct.
0089
 1         Q.    You believe that during the
 2   procedure he was adequately anticoagulated with
 3   the Heparin, correct?
 4         A.    Correct.
 5         Q.    Now, you're certainly aware of the
 6   concept of bridging with Heparin?
 7         A.    Yes.
 8         Q.    And that is done with many surgical
 9   procedures where they are taken off of their
10   chronic Coumadin days before the procedure --
11               MR. MISHKIND:  Objection.
12         Q.    -- and then they are given Heparin
13   during the procedure, correct?
14         A.    Correct.
15         Q.    You're aware of that concept?
16         A.    Correct.
17         Q.    And then you're aware that at the
18   end of the procedure -- do you have an
19   understanding as to why in those procedures
20   Heparin is given during the procedure?
21         A.    Because it's shorter acting and
22   they can reverse it.  It's easier to handle.
23         Q.    So then during the procedure -- at
24   the end of the procedure the Heparin is
25   reversed with a drug called Protamine?
0090
 1         A.    Yes.
 2         Q.    You're aware of that concept?
 3         A.    Yes.
 4         Q.    Okay.  And can you name some other
 5   procedures where this idea of bridging with
 6   Heparin is done?
 7               MR. MISHKIND:  Objection.
 8   Relevance.
 9               Go ahead.
10         A.    It's done in many procedures.  Most
11   of them are vascular procedures.  Many of them
12   involve the heart, some involve peripheral
13   vascular diseases, certain vascular disease
14   treatment.
15         Q.    All right.  So you've told us you
16   believe this clot developed in the left atrium
17   during the procedure, correct?
18         A.    After the procedure.  I don't think
19   it developed while he was on Heparin.  I think
20   this happened afterwards.  After the Heparin
21   was taken away he's not being anticoagulated or
22   sufficiently anticoagulated with Coumadin.
23         Q.    Okay.  Because I thought you said
24   earlier that this -- your number 1 says, in the
25   course of the procedure, PAVI, he acquired a
0091
 1   thrombogenic lesion.
 2         A.    That's exactly what it says.  It
 3   doesn't say he had a clot then.  But he has the
 4   substrate to form a clot because of obligate
 5   injury.  That's a consequence of the procedure
 6   of ablation.
 7         Q.    All right.
 8         A.    It involves the inner surface of
 9   the heart.
10         Q.    All right.  So you don't believe
11   this clot developed during the procedure
12   itself?
13         A.    I think as long as he had Heparin
14   on board and it was active, it did not.  It was
15   after that.
16         Q.    Okay.  And when after the procedure
17   did he develop the clot?
18         A.    Well, I think as soon as they
19   reversed the Heparin clot formation starts.  I
20   know that he had embolization about four hours
21   later.  So it's a short time frame.
22         Q.    Okay.  So you know when the
23   embolization occurred.
24               When do you believe, to a
25   reasonable degree of medical probability, the
0092
 1   clot developed?
 2         A.    It began when Heparin became
 3   ineffective.  Was made to become ineffective.
 4         Q.    Made to become ineffective is what
 5   you're saying?
 6         A.    Yes.
 7         Q.    All right.  And was there Heparin
 8   still on board after the Protamine is given?
 9         A.    Well, there may be.  I don't know.
10   It doesn't go away entirely.  It just becomes
11   insufficient in amount to cause bleeding.
12   That's what Protamine does and that's what he
13   got.
14         Q.    Okay.  Is there -- are you aware of
15   the -- with the concept of bridging, that there
16   is a time period after the -- in general, the
17   concept that after the Heparin is discontinued,
18   that there's a time period before patients are
19   started back up on anticoagulation, Coumadin --
20               MR. MISHKIND:  Let me just note an
21   objection as it relates to in general as
22   opposed to specific to this case.
23         A.    There may be.  I realize it's
24   somewhat controversial.  Not everybody believes
25   that.
0093
 1         Q.    Not everybody believes what?
 2         A.    Believes that you should wait a day
 3   or two or two hours or two weeks.  The issues
 4   that drive quicker consumption of Coumadin
 5   anticoagulation is generally the presence of a
 6   stroke in somebody who has gone for a day or
 7   two without Coumadin.
 8         Q.    You say it's controversial.
 9               What do you mean by that?
10         A.    Well, there's literature on each
11   side of it.
12         Q.    And I know -- I've read other
13   testimony of yours where you talk about the
14   benefits of anticoagulation.  There is a
15   balance.
16               There's risks with anticoagulation?
17         A.    Well, like all things in life,
18   certainly.
19         Q.    What's one of the --
20         A.    Well, go ahead.  I want you to
21   finish your question.
22         Q.    Go ahead.  What are the risks of
23   anticoagulation?
24         A.    Bleeding, bleeding, bleeding and
25   bleeding.  Now, there's some other risks, too.
0094
 1   Reactive thrombophilia, bone necrosis, on and
 2   on and on and on.  But those are vanishingly
 3   small risks.  The risks -- or the unwanted
 4   effects of Coumadin are the same as its
 5   intended effects.  It's a matter of degree.
 6   Coumadin causes bleeding, Heparin causes
 7   bleeding.  Many other drugs cause bleeding,
 8   too.  They need to be regulated.
 9         Q.    You mentioned that you have had
10   patients, we talked about this an hour or so
11   ago, that have suffered strokes.
12               Have you had any patients who have
13   suffered bleeding complications from being on
14   anticoagulation?
15               MR. MISHKIND:  Objection.
16               MR. KULWICKI:  Objection.
17         A.    Yes, I have.
18         Q.    Okay.
19               MS. CARULAS:  That was a big one to
20   get you both going.
21               MR. MISHKIND:  Yes.
22               MR. KULWICKI:  As you're going down
23   this, can we have a continuing objection to
24   this line of inquiry?
25               MS. CARULAS:  Sure.
0095
 1               MR. KULWICKI:  Thanks.
 2         Q.    Tell me the experiences you've had
 3   of patients who have had bleeding complications
 4   from anticoagulation.
 5         A.    I've had more than one elderly
 6   person anticoagulated for either cardiac
 7   arrhythmias or some other form of
 8   cardiovascular disease fall and fall on their
 9   head and develop fatal intracranial
10   hemorrhages.  I've had patients who have had
11   both fatal and nonfatal intracerebral
12   hemorrhage from a Coumadin overdose.  From
13   Heparin in the course of surgery as well.  So
14   these are not drugs to be taken lightly.  They
15   do have complications.  Complications are
16   reduced by methods of administration and by
17   looking at how much anticoagulation is being
18   produced by the given amount of a drug.
19         Q.    And you say that you've had
20   patients who have had bleeding complications in
21   the course of surgery due to anticoagulation.
22   Tell me about that.
23         A.    Well, I --
24               MR. MISHKIND:  Excuse me.  I just
25   want to note we have a continuing line of
0096
 1   objection.  I just want a specific objection as
 2   to the relevance to this line of questioning as
 3   it relates to this case.  Go ahead, Doctor,
 4   answer the question.  I just want the objection
 5   to be specific.
 6         A.    Yes.  I haven't had many patients
 7   who have had those sorts of complications.
 8   One, a young girl in the course of endovascular
 9   coiling and another person with a carotid
10   endarterectomy, that I remember.  I'm sure
11   there's been others, but I don't --
12         Q.    Obviously, you weren't there?
13   These are tangentially your patients that have
14   had procedures and then you --
15         A.    Well, I'm not sure they were
16   tangential.  They were my patients who were
17   having surgery or other endovascular procedures
18   for some illness.
19         Q.    Okay.  Number 6.  You mentioned,
20   were it not for the failure of adequate
21   anticoagulation at the time of his cardiac
22   procedure, it is more probable than not that
23   Mr. Sullivan would have been spared the severe
24   stroke he suffered.  The provision of such
25   anticoagulation under such circumstances as
0097
 1   Mr. Sullivan endured is well established in
 2   medical literature.  All right.
 3               So when you say the failure of
 4   adequate anticoagulation, what do you mean by
 5   that?
 6         A.    A degree of anticoagulation that's
 7   sufficient for the prevention of the formation
 8   of clots.
 9         Q.    So, you're saying that if the
10   patient had a therapeutic INR before the
11   procedure, that you believe this stroke would
12   not have occurred?
13         A.    No.  That's not what I said.
14         Q.    Okay.
15         A.    He was inadequately anticoagulated
16   before, so he's got less than a bridge.  If he
17   has a bridge, the entrance and exit from the
18   bridge itself are a very low level.  Okay?
19   There are those who would hold up that the
20   degree of anticoagulation needs to be in a
21   therapeutic range to begin with, that if
22   Heparin is used it can be reversed and that the
23   anticoagulation be carried through and not
24   stopped.  Just continue.  Again, at a level of
25   effective anticoagulation with Coumadin.
0098
 1   That's my opinion.
 2         Q.    All right.  And you -- we know
 3   you're not getting into standard of care.
 4   You're not expressing which arm to use?
 5         A.    No.  I'm saying that's the
 6   causation were it not for.
 7         Q.    Okay.
 8         A.    Okay?
 9         Q.    All right.  So you've talked about
10   how there are different schools as far as how
11   to approach this, correct?
12               MR. MISHKIND:  Objection.
13         Q.    And you know that one school is to
14   decrease -- let me start over.
15               One school is to continue on with
16   therapeutic Coumadin throughout the procedure?
17         A.    Yes.
18         Q.    Another arm is to discontinue
19   Coumadin days before and bridge with Heparin,
20   correct?
21               MR. MISHKIND:  Let me object to --
22   excuse me for one second.  Let me just object
23   to the reference to two schools as it relates
24   to this case.  I don't believe that that's
25   relevant.  Obviously, that's going to be an
0099
 1   issue we're going to be fighting over, but I
 2   believe in this particular case two schools is
 3   not an appropriate legal argument from a
 4   defense standpoint.  But we can get into that.
 5   I just want the record to reflect that.  He can
 6   still go ahead and answer your question.
 7               MS. CARULAS:  Okay.  Sounds good.
 8               MR. MISHKIND:  If he remembers what
 9   the question was.
10         Q.    Do you want me to restate it or --
11         A.    No.  There are probably more than
12   two schools of thought.  I think that which is
13   born of continuing experience and safest in
14   terms of patient risk and benefit is not to
15   continue therapeutic levels of anticoagulation
16   when you know you're dealing with a
17   thrombogenic surface.
18         Q.    Okay.
19         A.    That is my opinion.
20         Q.    All right.  From what I understand,
21   what you're saying is you think if the arm of
22   continual Coumadin had been given versus the
23   arm of discontinuing Coumadin, bridging with
24   Heparin, you believe this stroke wouldn't have
25   happened?
0100
 1         A.    Almost.
 2         Q.    Okay.
 3         A.    If it's a continuous arm of 1.4,
 4   no.  If he were adequately anticoagulated, I
 5   want to say 2.5, some number around there,
 6   maybe a little more, then it wouldn't have
 7   happened either.  He would have had continuous
 8   protection at a reasonable level against the
 9   probability of clot formation.  That 1.4 will
10   carry through -- if that's the lower level of
11   the bridge, it's not going to.  It has to be
12   picked up.
13         Q.    All right.  Now, you have what
14   experience with this?
15         A.    I want to make sure you're done
16   talking.
17         Q.    What experience do you have with
18   this --
19         A.    Geez.
20         Q.    -- concept?
21         A.    Okay.  It's this.  It is not
22   uncommon for me to see people who have, for one
23   reason or another, who have atrial
24   fibrillation, have their anticoagulation
25   stopped for something.  Someone either doesn't
0101
 1   pick it up or picks it up at a low level later
 2   or too late and they have a stroke.  It's not
 3   ablation.  It's all kinds of things.  That is
 4   something I see probably three or four times a
 5   year.  I think it's an avoidable injury.  Okay?
 6   Now, we haven't talked about risks and
 7   benefits.  All kinds of things can happen.
 8         Q.    Okay.
 9         A.    But the intended benefit is usually
10   the one that works.  This interruption done in
11   the name of I don't know what is not in the
12   interest of patient benefit.  It hurts.  It can
13   happen in all sorts of procedures besides this.
14   It can happen for any reason that Coumadin is
15   stopped or given inadequately.
16         Q.    All right.  So the basis for you
17   giving the opinion that this patient would not
18   have had a stroke if he had been -- if he would
19   have been on a therapeutic Coumadin level
20   throughout this procedure is what?  I want to
21   know exactly your basis for that.
22         A.    Well, I think I've given you part
23   of that basis.  Again, I go back to some of the
24   Cleveland Clinic publication.  This one by
25   Dr. Mohamed Kanj.  I'm quoting from it.
0102
 1   They're talking about this procedure, pulmonary
 2   vein antrum procedures.  We routinely perform
 3   this procedure while patients are fully
 4   anticoagulated, with a therapeutic
 5   international normalized ratio (INR), between 2
 6   and 3.5.  Patients with chronic atrial
 7   fibrillation must have therapeutic INRs for at
 8   least two months before the procedure.  Well,
 9   if they're having it before the procedure and
10   have a brief procedure and come out of the
11   procedure, it's going to be 2.5 to 3.5 when
12   they come out.  That's the bridge.
13         Q.    All right.
14         A.    That's the level of the bridge.
15   Okay?
16         Q.    All right.  So I want to leave here
17   today and I want to know every basis that
18   Dr. Conomy has for his opinion on causation
19   here.
20               Number 1 is looking at Dr. Kanj's
21   article and quoting a section from Dr. Kanj,
22   correct?
23         A.    Correct.
24         Q.    Okay.  Besides that statement from
25   Dr. Kanj, in this article -- let me start
0103
 1   again.  I'm going to get to that in a minute.
 2               This article was sent here and it
 3   has certain highlighting on it?
 4         A.    Yes.
 5         Q.    It looks like there's certain
 6   sections here that are highlighted before it
 7   was copied and given to you?
 8         A.    Right.  And then there's some more
 9   that I put in there, too.
10         Q.    Okay.  So the section here that
11   highlights Heart Rhythm Journal, and then
12   there's a -- the first paragraph under
13   Anticoagulation Protocol is highlighted.
14               It was highlighted when sent to
15   you, correct?
16         A.    Yeah.
17         Q.    Okay.  So this was highlighted by
18   Mr. Kulwicki and sent to you?
19         A.    I don't know who highlighted it,
20   but I'm thankful to them.  It's irrelevant to
21   me who highlighted it.  It's an important piece
22   of that article.
23                    -  -  -  -  -
24               (Thereupon, Deposition Exhibit E,
25               Article by Dr. Kanj, was marked for
0104
 1               purposes of identification.)
 2                    -  -  -  -  -
 3         Q.    Okay.  So Dr. Kanj's article,
 4   written along with Dr. Wazni and Dr. Natale --
 5   do you know any of those gentlemen?
 6         A.    No.  I know they're from the
 7   Cleveland Clinic because of the tag on the
 8   article.  I don't know --
 9         Q.    The Heart Rhythm -- the journal
10   entitled Heart Rhythm is not a journal that you
11   read in your regular practice?
12         A.    Not regularly.  But I think it's a
13   fine journal and that's a good statement.
14   There's a lot of journals I don't read
15   regularly, but I read from time to time.  That
16   happens to be one of them.  That statement, by
17   the way, is not isolated to that article.
18         Q.    Prior to Mr. Kulwicki providing you
19   with this article authored by Dr. Kanj, do you
20   believe you would have read it?
21         A.    If I had to go looking on my own
22   I'm sure, which I do all the time anyhow, I'm
23   sure it would have popped up.  I just didn't do
24   it this time.  I didn't have to.
25         Q.    Prior to Mr. Kulwicki sending you
0105
 1   this article, which I've marked as Exhibit E,
 2   had you read it?
 3         A.    No.  I had not read it prior.
 4         Q.    The sections here that are marked
 5   off in dark highlighting, that was highlighted
 6   like that prior to being sent to you, correct?
 7         A.    Yes, it was.  The parts in yellow
 8   were not, but that one --
 9         Q.    The yellow highlighting is yours,
10   the dark highlighting is from Mr. Kulwicki's
11   office, correct?
12         A.    I believe so.
13         Q.    We've already talked about this.
14               Besides this article from Dr. Kanj
15   and the section you read, what other basis do
16   you have for your opinion on causation that
17   this stroke would not have happened if the
18   patient had had a therapeutic INR before the
19   procedure?
20         A.    I'm trying to look at the page and
21   chapter for you.  It's from Recommendations
22   from the American Heart Association.  The
23   American College of Cardiology.  Pardon me.
24               MR. KULWICKI:  What did you mark as
25   -- did you mark a D?  Oh.  The CV is D?
0106
 1               MS. CARULAS:  Yes.
 2         A.    If I may, in the practice
 3   guidelines, the American College of Cardiology,
 4   already marked as Exhibit 5, there's a long
 5   section.  I'm not going to even begin to read
 6   all of it.  It's a lot of charts and graphs and
 7   so forth on studies on stroke prevention in
 8   atrial fibrillation with Warfarin.  They go on
 9   for numerous pages with numerous graphs and
10   charts to talk about what's effective and what
11   isn't.  With nonvalvular atrial fibrillation
12   the requirements are a little bit lower than
13   with valvular atrial fibrillation.  But the
14   range is -- was already stated in the paper
15   you've so well pointed -- hold on.  I'll find
16   it for you.  Between 2 and a half -- between 2
17   and 3 and a half.  There are lots of atrial
18   fibrillation stroke prevention studies that are
19   listed here.  There are at least eight of them.
20   They tend to come up with the same conclusions.
21               Adequate anticoagulation works in
22   terms of stroke prevention, not without risks,
23   and those are the ranges.  There's a section in
24   there on discontinuation, too.  The tendency
25   over time has been to shorten that period.  Not
0107
 1   wait a couple weeks.  But this is not a
 2   procedure that has involved a lot of protocol,
 3   tissue transection and arterial repair.  Likely
 4   source of bleeding is like a heart transplant
 5   or extensive coronary heart surgery.  So, there
 6   has to be some recognition of the kind of
 7   procedure that's going on.
 8               MR. MISHKIND:  I think, for the
 9   record, so that when we look at the transcript,
10   when you referred to Exhibit 5, that was
11   Exhibit 5 from another deposition.  I don't
12   think you marked that as an exhibit.
13               MS. CARULAS:  Right.  I realize
14   that.
15         Q.    All right.  As far as -- again,
16   we've been through this.  The details of --
17   well, let me start again.
18               This Exhibit 5 from another
19   deposition, which is the American College of
20   Cardiology, American Heart Association ECS
21   [sic] 2006 guidelines, this was again provided
22   to you by Mr. Kulwicki, correct?
23         A.    Right.
24         Q.    And prior to him sending this to
25   you, you believe you would not have read it,
0108
 1   correct?
 2         A.    Well, no.  I have read it.  The
 3   American Heart Journal Guidelines.  This is not
 4   the first time I've seen it.
 5         Q.    Okay.  So you would have perused it
 6   before?
 7         A.    Yes.
 8         Q.    And the highlighting section here,
 9   similar to the other article, this was -- the
10   highlighting area here, for instance, on page
11   e211, this was all again done by Mr. Kulwicki's
12   office?
13         A.    I don't know who did it.  It's
14   somebody else's deposition.  Maybe they did it.
15   I don't know.  That's the way it came.
16         Q.    This is the way it came to you?
17   Highlighted?  Correct?
18         A.    Yes.
19                    -  -  -  -  -
20               (Thereupon, Deposition Exhibit F,
21               ACC/AHA/ESC Practice Guidelines, was
22               marked for purposes of
23               identification.)
24                    -  -  -  -  -
25         Q.    We've marked it as Exhibit F?
0109
 1         A.    Right.
 2         Q.    So the basis for your opinion that
 3   this stroke happened as a result of the fact
 4   that Mr. Sullivan did not have a therapeutic
 5   INR before the procedure is Dr. Kanj's article,
 6   which we've marked as Exhibit E, and the
 7   American Heart Association Guidelines, which
 8   we've marked as Exhibit F?
 9         A.    Yeah.  Well, those are only two of
10   them.  There's a lot more literature on it.
11   But that's fine.  They quote all of the
12   relevant studies in that on atrial
13   fibrillation.
14         Q.    Okay.  I want to know the basis
15   that you have for your opinions on this issue
16   of causation, that a therapeutic INR would --
17   had he been on a therapeutic INR, that he would
18   not have suffered a stroke?
19               MR. MISHKIND:  Excuse me for one
20   second.  Just going back, several hours ago we
21   had gone through the literature that he cited
22   in his report.  I think we've already covered
23   some of it, but not all of the literature that
24   he has indicated as sources.  I don't want the
25   record to reflect just because you're
0110
 1   emphasizing these two items that the other
 2   literature is not part of the basis for his
 3   opinions.
 4         Q.    Dr. Conomy, you were provided with
 5   1, 2, 3, 4, 5, 6 -- it looks like a number of
 6   different articles from Mr. Kulwicki and
 7   Mr. Mishkind.  Mr. Mishkind has now pointed you
 8   to some additional sources here.  I want to
 9   know your opinion.  Not what has come from
10   other people.  I want to know the basis for
11   your opinions that you will give to a jury in
12   this case on causation.  You've mentioned the
13   Kanj article, you've mentioned the American
14   Heart Association Guidelines.
15               Any other basis besides those two
16   items that will -- that support your opinions?
17         A.    May I see the American College of
18   Cardiology Guidelines?  This is a piece of the
19   same thing.  Simply let me put it, the number
20   of studies on anticoagulation in here are
21   voluminous.  There are at least eight major
22   studies.  This is a comprehensive review of
23   world literature at that point.  I think it's
24   sufficient, too.
25         Q.    Okay.  Do you know whether the two
0111
 1   articles you talked about, the Kanj and the
 2   American Heart Association, those two bases, or
 3   anything else for that matter, do you know
 4   whether or not there has been a controlled
 5   study done specifically to establish that the
 6   use of continuous Coumadin with therapeutic INR
 7   prevents stroke versus the concept of bridging
 8   that we discussed?
 9         A.    No.  I would be surprised if there
10   were.  In studies like that they have to
11   measure hard risks like death and stroke.  It's
12   a pretty hard study to do.  But I don't know.
13         Q.    Okay.  Have you looked to see
14   whether or not there -- is that something
15   you've either looked into or asked Mr. Kulwicki
16   or Mr. Mishkind, who have done research on
17   this, whether or not there has ever been a
18   controlled study on this subject?
19         A.    I'm not aware of one.  I'm fairly
20   familiar with stroke literature.  Not of the
21   kind that you suggest.
22         Q.    Okay.  Are you aware of any ongoing
23   studies on --
24         A.    No, I'm not.  Not with respect to
25   this particular -- what I'm speaking to is a
0112
 1   controlled study with the parameters you
 2   mentioned.  Specifically designed for this form
 3   of ablation technique.
 4         Q.    Okay.  If there was a controlled
 5   study that was ongoing to look into the issues
 6   of whether stroke can be decreased with one arm
 7   versus the other arm, would that establish to
 8   you that it is not a well established concept
 9   at this point?
10               MR. MISHKIND:  Objection.
11         A.    Well, I'm not sure I understand any
12   part of the question.  The studies you have
13   there point, all of them, toward very large --
14   impressively large risk reductions in
15   anticoagulation in people with atrial
16   fibrillation.  To duplicate it in yet another
17   small study or procedure relative to
18   anticoagulation I think would require
19   extraordinary instruction of an institutional
20   review board.  Since you've already got
21   studies, lots of them, hundreds of thousands of
22   people, that show relevant risk reductions of
23   two-thirds.  Where I'd share in that board, I'd
24   ask them, you know, how much better do you want
25   to get and then ask what kind of risks do you
0113
 1   have on -- the incidence of thromboembolic
 2   disease is what to begin with?  You don't know
 3   and now you're going to reduce it.  So, I think
 4   there would be a lot of problems constructing a
 5   study like that.
 6         Q.    Okay.
 7         A.    I've never seen one in
 8   stroke-related literature and that's where
 9   they'd wind up.  Looking at strokes, you're
10   looking at brain disease, too.  Not looking at
11   atrial fibrillation and such.  Okay?
12         Q.    Okay.  All the things you quoted in
13   this literature here talk about atrial
14   fibrillation in general, correct?
15         A.    Yes.
16         Q.    I was talking about whether or not
17   you're aware of any studies that specifically
18   are looking at which arm to use, whether it's
19   continuous Coumadin, whether therapeutic INR or
20   the bridging concept and the relative risk of
21   stroke and bleeding between the two of them.  I
22   want to make sure we're on the same page.
23               You're not aware of any studies
24   that have specifically looked at that issue,
25   correct?
0114
 1               MR. MISHKIND:  Objection.
 2         A.    They look specifically at that, all
 3   of them.  The relative risk of stroke reduction
 4   in people with atrial fibrillation.  What they
 5   don't look at is ablation techniques.
 6         Q.    Right.  That was exactly my point.
 7               Are you aware of any controlled
 8   studies that have looked at the different
 9   anticoagulation arms in atrial fibrillation
10   catheter procedures?
11               MR. MISHKIND:  Objection.
12         A.    Where is the -- the one from the
13   Clinic?  Kanj.  The first one in your pile.
14   This is an advice that starts with what we do
15   from Dr. Kanj at the Cleveland Clinic.  It
16   doesn't say it's a controlled study of
17   anything.  It says we do this and it suggests
18   that other people do the same thing.  So it's
19   not a controlled study.  I am not aware of it.
20         Q.    We've been over it.
21               You've not read any subsequent
22   literature from Dr. Kanj or any of the doctors
23   at the Cleveland Clinic, other than what was
24   provided to you by Mr. Kulwicki?
25         A.    I have not.  Not with respect to
0115
 1   this proceeding, no.
 2         Q.    All right.  Just so we're
 3   absolutely clear, you've -- you're not aware of
 4   any controlled study specifically on this
 5   subject that we're talking about in this case,
 6   catheter ablations and anticoagulation?  True?
 7               MR. MISHKIND:  Objection.
 8               Asked and answered.
 9         A.    There are studies about how -- what
10   people do, but they're not controlled studies.
11         Q.    All right.  And if a study would
12   obtain institutional review board consent to
13   look into it and if one is looking at
14   potentially two different arms and trying to
15   decide whether or not -- what the relative
16   risks of stroke versus bleeding are, that would
17   tell you that it is not an established, firm
18   concept, correct?
19         A.    No.  It would tell me the studies
20   haven't been done.
21         Q.    Okay.
22         A.    There are a lot of firm concepts
23   that don't bear on controlled studies.
24         Q.    Sure.  Why are controlled studies
25   done?
0116
 1         A.    They're done to show preference and
 2   safety for one treatment over another.  Now,
 3   many of them have more than one arm.  They have
 4   blindedness, statistical analysis, informed
 5   consent and a whole lot of other things with
 6   it.
 7         Q.    And studies are done in order to
 8   look at the issue oftentimes of causation and
 9   whether or not one is more likely to cause
10   something or the other?
11         A.    Well, in a general way, yeah.
12   They're done for all kinds of reasons.
13         Q.    Okay.  Now, you've told me you do
14   believe that Mr. Sullivan was adequately
15   anticoagulated during the procedure with the
16   Heparin, correct?
17         A.    Yes.
18         Q.    So the statement in number 7 that
19   he was not effectively anticoagulated during
20   the procedure, that was an error?  You believe
21   he was?
22         A.    Not quite.  It's not an error.
23   He's not effectively anticoagulated with
24   Coumadin.  He is with Heparin.  But in terms of
25   an overall program of anticoagulation, he's not
0117
 1   adequately anticoagulated.
 2         Q.    Okay.  All right.  If you do your
 3   examination of Mr. Sullivan in Hawaii, I assume
 4   you will prepare a report of your findings?
 5         A.    Certainly.
 6         Q.    And you will provide that report to
 7   these gentlemen?
 8         A.    And you'll be provided, too.
 9               MR. MISHKIND:  You'll be the second
10   one to get it.
11               MS. CARULAS:  We may meet again.
12               MR. MISHKIND:  We will give you
13   that opportunity.
14               MS. CARULAS:  Okay.
15         A.    That will be a subliminal pleasure.
16         Q.    Now, have we covered all the bases
17   for your opinions on causation?
18         A.    I think we have.
19         Q.    All right.  If you come up with any
20   additional bases, you will let Mr. Kulwicki or
21   Mr. Mishkind know that, so I'm apprised of
22   that?
23         A.    I certainly will.  I'm happy with
24   that.
25         Q.    Okay.
0118
 1               MS. CARULAS:  Thank you very much.
 2               MR. MISHKIND:  The doctor will read
 3   the transcript.
 4      (The deposition concluded at 12:26 p.m.)
 5   
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0119
 1   Whereupon, counsel was requested to give
 2   instruction regarding the witness's review of
 3   the transcript pursuant to the Civil Rules.
 4   
 5                      SIGNATURE:
 6   Transcript review was requested pursuant to the
 7   applicable Rules of Civil Procedure.
 8   
 9                 TRANSCRIPT DELIVERY:
10   Counsel was requested to give instruction
11   regarding delivery date of transcript.
12               Ms. Carulas:  Original.
13               Mr. Kulwicki:  Copy.
14   
15   
16   
17   
18   
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25   
0120
 1                REPORTER'S CERTIFICATE
 2   The State of Ohio,   )
 3                                SS:
 4   County of Cuyahoga.  )
 5   
 6               I, Ashanti Edwards, a Notary Public
 7   within and for the State of Ohio, duly
 8   commissioned and qualified, do hereby certify
 9   that the within named witness, JOHN PAUL
10   CONOMY, M.D., J.D., was by me first duly sworn
11   to testify the truth, the whole truth and
12   nothing but the truth in the cause aforesaid;
13   that the testimony then given by the
14   above-referenced witness was by me reduced to
15   stenotypy in the presence of said witness;
16   afterwards transcribed, and that the foregoing
17   is a true and correct transcription of the
18   testimony so given by the above-referenced
19   witness.
20               I do further certify that this
21   deposition was taken at the time and place in
22   the foregoing caption specified and was
23   completed without adjournment.
24   
25   
0121
 1               I do further certify that I am not
 2   a relative, counsel or attorney for either
 3   party, or otherwise interested in the event of
 4   this action.
 5               IN WITNESS WHEREOF, I have hereunto
 6   set my hand and affixed my seal of office at
 7   Cleveland, Ohio, on this ________ day of
 8   ___________________, 2011.
 9   
10   
11   
12   
13               ________________________________
14               Ashanti Edwards, Notary Public
15               within and for the State of Ohio
16   
17   My commission expires October 14, 2012.
18   
19   
20   
21   
22   
23   
24   
25   
0122
 1                  DEPOSITION REVIEW
                 CERTIFICATION OF WITNESS
 2   
     RE:  SHANNON SULLIVAN, ET AL., VS. THE
 3   CLEVELAND CLINIC FOUNDATION
     DEPONENT:  JOHN PAUL CONOMY, M.D., J.D.
 4   COURT REPORTER:  Ashanti Edwards, Rennillo
     Deposition & Discovery
 5   
           In accordance with the Rules of Civil
 6   Procedure, I have read the entire transcript of
     my testimony or it has been read to me.
 7   
           I have made no changes to the testimony
 8   as transcribed by the court reporter.
 9   
10   
     Date                     Witness
11   
           Sworn to and subscribed before me, a
12   Notary Public in and for said State and County,
     the referenced witness did personally appear
13   acknowledge that:
14         1.  They have read the transcript;
           2.  They signed the foregoing sworn
15   statement; and
           3.  Their execution of this Statement is
16   of their free act and deed.
17   I have affixed my name and official seal
     this     day of        , 20     .
18   
19   
20   
21   
22                    Notary Public
23   
24   
25                    My Commission Expires:
0123
 1                  DEPOSITION REVIEW
            ERRATA & CERTIFICATION OF WITNESS
 2   
     RE:  SHANNON SULLIVAN, ET AL., VS. THE
 3   CLEVELAND CLINIC FOUNDATION
     DEPONENT:  JOHN PAUL CONOMY, M.D., J.D.
 4   COURT REPORTER:  Ashanti Edwards, Rennillo
     Deposition & Discovery
 5   
           In accordance with the Rules of Civil
 6   Procedure, I have read the entire transcript of
     my testimony or it has been read to me.
 7   
           I have listed my changes on the attached
 8   Errata Sheet, listing page and line numbers as
     well as the reason(s) for the change(s).
 9   
           I request that these changes be entered
10   as part of the record of my testimony.
11         I have executed the Errata Sheet, as well
     as this Certificate, and request and authorize
12   that both be appended to the transcript of my
     testimony and be incorporated therein.
13   
14   Date                         Witness
15         Sworn to and subscribed before me, a
     Notary Public in and for said State and County,
16   the referenced witness did personally appear
     and acknowledge that:
17   
           1.  They have read the transcript;
18         2.  They have listed all of their
     corrections in the appended Errata Sheet;
19         3.  They signed the foregoing sworn
     statement; and
20         4.  Their Errata and execution of this
     Statement is of their free act and deed.
21   
     I have affixed my name and official seal
22   this           day of           , 20       .
23   
                      Notary Public
24   
25                    My Commission Expires: