6318 Index by Vihang - New York Injury Cases Blog...left elbow, the left wrist and left hand, the...

413Proceedings

THE CLERK: Yes.

MR. HARDICK: Oh, nice.

THE COURT: Then we'll take an hour after we

do the doctor.

MR. HARDICK: Okay.

THE COURT: I'm trying to squeeze everything

MR. HARDICK: Thank you, Judge.

THE COURT: You may call your witness.

MR. HARDICK: Doctor.

THE COURT OFFICER: Remain standing. Place

your left hand on the bible. Raise your right hand.

DR. G E O R G E F. L E O N P A U L ,

called as a witness by the Defendant, having been first duly

sworn, testified as follows:

THE CLERK: Have a seat.

Doctor, state your name and address for the

record.

THE WITNESS: George F. Leon Paul, P-A-U-L,

3621 Glenwood Road, Brooklyn, New York 11210.

THE CLERK: Thank you.

The witness states his name is Joseph Leon

Paul of 3621 Glenwood Road, Brooklyn, New York 11210.

And the witness has been sworn, your Honor.

THE COURT: Thank you.

Joyce Fisher, C.S.R., Official Court Reporter

414Paul - Defendant - direct

You may inquire.

DIRECT EXAMINATION

BY MR. HARDICK:

Q Dr. Paul, are you a physician duly licensed to

practice medicine in the State of New York?

A Yes, sir.

Q Could you explain to the Court and the jury your

educational background, your training, your status as an

orthopedist.

A I am a graduate from the faculty of medicine,

Port-au-Prince, Haiti, 1974. 1968-1974.

1977, I was in Baltimore, Maryland doing a

residency in general surgery at Franklin Square Hospital

with rotation at the burn unit, Johns Hopkins University,

and shock trauma unit of University of Maryland.

1979-1980, I was admitted at Mount Sinai Hospital

for a third-year postgraduate.

1980-1983, I was admitted at the Columbia

University program based in Harlem, orthopedic surgery.

1983-1984, I was admitted as a junior attending at

the New York Hospital and as a fellow at the Hospital for

Special Surgery.

I have been in private practice since 1984.

I am a diplomate of the American Board of

Orthopedic Surgery.

Q Now, doctor, at the request of the defendant in

this case, did you conduct a physical examination of Alicia

Rutledge on February 12, 2004?

A Yes, sir.

Q And at that time, did you get a history of the

accident?

A Yes, sir.

Q And what did she tell you?

A The history was as follows:

On November 23, 2003, she was a passenger in a

bus. According to the history, the driver closed the front

of the door on her and proceed to drive the bus. And she

reported that she sustained multiple injuries to his neck,

to his back, to his left hip, etcetera.

According to the history, she started treatment at

the Uptown Chiropractic Center where she received treatment

for her neck, her back, left shoulder, left elbow, left

wrist, left hand.

Q And what were her complaints at the time of your

examination?

A She was complaining of neck pain, back pain, left

shoulder pain, left arm pain, left leg pain, left knee pain,

left ankle pain, left foot pain, and she was complaining

also of some numbness in the neck area and pain radiating to

the neck.

Q And, at the time of your physical examination, did

you inquire as to whether she was taking any medication?

A Yes, sir.

Q And what did she say under past medical history?

A She was not taking any medication.

Q Did you perform a physical examination on her?

A Yes, sir.

Q And could you tell us what that examination

consisted of.

A The examination was what we call an orthopedic

examination of the affected areas, the areas that the

patient stated where the patient was having pain. The

cervical spine, which is the neck, the left shoulder, the

left elbow, the left wrist and left hand, the thoracic

spine, which is the area below the neck, the lumbar spine,

the left knee, and the left foot and the left ankle.

Q You conducted — when you conducted an examination

of her cervical spine, what did you find?

A We started by looking, what we call inspection,

inspection of the cervical spine itself. The examination of

the cervical spine showed that there was what we call a

normal lordoses of the cervical spine.

Q What does that mean? What is lordoses?

A Okay. Depending, you looking at someone face to

face on the side. The look is different. When you look at

someone on the side, you will see that there are multiple

curves in the lumbar, in the spine itself.

Normally, if there is no spasm in the cervical

spine, we have what we call a lordoses, meaning that there

is a little curve that one can see. When you look at

someone not face to face, but on the side, you will see this

curve that we call the lordoses of the cervical spine.

Q And why is that important?

A The absence of it would suggest that there is no

pathology in the area. Not that only, but it is one sign

when there is no lordoses when the lordoses is expected.

And, secondly, after you look, you're going to use

your hands to do what we call to palpate to see if there is

any spasm.

Q All right. And did you do that in this case?

A Yes, sir.

Q And what were your findings?

A There was no spasm of the para-spinal muscle

noted.

Q Then what did you do?

A Then after that we perform a test we call the neck

compression test. How you perform the neck compression

test? With the palm of your hand on the patient head, you

hold with your finger and you push down, and you twist

slowly and you asking the patient, you know, what do you

feel? Do you feel any pain? If yes, where?

Q All right. What are you looking for there?

A In case there is what we call herniated disk of

the cervical spine, the neck compression test will put some

pressure on the disk and will irritate the nerve, depending

on the level of the herniation. The patient will tell you

that I have pain going on in my fingers, in the back of my

hands, in the front, forearm and shoulder, depending on the

nerve root involved.

Q And what was the results of that test?

A The neck compression test was negative.

Q Then what did you do?

A We look for range of motion, is one of the

parameters one has to look at, range of motion.

Range of motion, you do it in a way simply. You

ask the patient to look at the ceiling. If the patient can

look at the ceiling like this, means that there is full

extension of the cervical spine.

You ask the patient to -- if the chin can touch

the chest, meaning that has full flexion of the neck, of the

cervical spine.

And, if you look forward, we call it lateral

rotation. Lateral rotation normally is about 90-degree that

the patient can move like this from the left. Right

rotation like this.

And you ask the patient to move the head on the

left, on the right. We call it left lateral rotation and

left right lateral rotation.

Q And what was the results of those tests?

A They were normal, 70-degree more or less.

The right lateral flexion was checked. You ask

the patient for your left ear to touch your left shoulder.

If the patient can do that, meaning that there is good

motion.

And then one part, really important of the

examination of the cervical spine, you have to check for the

muscle strength in the area because the nerve comes from the

neck, the nerve responsible to give strength, to give

sensation, to give muscle to the area that come from the

And then the last step of the examination is to

look for the reflexes. In the upper extremity, we check

what we call the triceps reflex, which is the muscle on the

back which, for the biceps and the inner muscle here, we

check for what we call brachioradialis.

Q All right. Now, you tested for muscle strength.

Why do you test for muscle strength?

A Is to -- you check it and you compare with the

other side. It's to see if there is decrease of strength of

one of the muscle, of one of the muscle of the upper

Joyce Fisher, C.S.R,, Official Court Reporter

extremities. Lower extremity, upper extremity.

If there is a decrease of strength, what that will

mean, I'll give you an example, what we call the rotator

cuff muscle, they are innervated by what we call a C-5 nerve

root. In the case of somebody has a herniated disk at

C-4/C-5 pressing on the C-5 nerve root, the patient can show

a decrease of strength of the rotator cuff muscle.

Q Rotator cuff?

A Yes. Just as an example, the rotator cuff muscle

is the one that allow you to do what we call overhead

activities, throwing. Like a baseball player, you need a

good rotator cuff to be able to throw, you know, the motion.

It is very important to know -- to check for the

muscle strength. It is very important to check the

reflexes, also. Because each group of reflexes affect one

group of nerve. Probably the biceps muscle will be on the

C-5 nerve root, C-5/C-6 nerve root. The triceps will be

itself on the C-6/C-7 nerve root.

Then when the reflexes are okay, this is a sign

that -- one of the sign that everything is okay.

Q Did you do a motor test on her wrist flexors and

extensors?

A Yes, sir.

Q What's that for? What are you testing for there,

what level?

A Okay. We will call wrist flexion, wrist

extension. The wrist flexor, they are on C-6/C-7. The

wrist extensor, that's the entensor that allows you to

extend your wrist. They take the origin from the lateral

aspect of the elbow for the wrist extensor, and, for the

flexor, on the medial aspect of the elbow.

Q Did you find any neurological findings in the

upper extremities, positive neurological findings?

A No, there was no neurological findings on the

examination of the cervical spine and on examination of the

upper extremities.

Q Did you perform an examination of the lumbar

spine?

A Yes, sir.

Q And what were your findings on the examination of

the lumbar spine?

A Again, examination of the lumbar spine reveals a

normal lordoses of the lumbar spine. I'll repeat myself

again.

The lordoses is the normal curve one can see in

the neck in the lower back.

In the chest area, one has what we all a normal

kyphosis, meaning that the spine instead of curving in, is

curving out for the thoracic spine.

We call it normal kyphosis of the thoracic spine,

normal lordoses of the lumbar spine.

And then after we -- this is that we do the

inspection by looking.

In the second stage is the palpation of the lumbar

spine.

On palpation, again, there was no spasm noted on

palpation. There was normal range of motion of the lumbar

spine.

Usually a person who has no problem with the

lumbar spine is able to bend. We see that a patient can

bend. You say bend for me. You ask the patient to imitate

your motion, to imitate, to follow.

90 degree, that is normal. And then the lateral

motion is 45 degree, 45 degree laterally, if the patient

can, in total.

Then we check for what we call straight leg

raising test. The straight leg raising test, there is a big

misunderstanding among the medical community. Many people,

I would say, not trained, not knowing exactly what it is,

the straight leg raising, you look for it with the patient

lying on the table. And then you pull one of the leg up.

You call it that's why they call it straight leg raising.

And you measure the angle, the angle between the leg of the

patient and the table.

However, the patient is sitting here. This is the

leg. You lift the leg up like this. This is an angle about

15 degrees, you see.

If the straight leg raising is positive at 15

degree, that mean that there is zero possibility. The

patient has severe limitation. The patient is very much

positive, meaning that the patient has severe limitation of

the nerve root of the nerve involved.

40 degree is questionable, small irritation. But,

if after 50 degree, and the test is negative, meaning that

it is all right.

Normally, it is not possible to get to raise

the leg over 70 degrees from the ground. You cannot raise

the leg over 70 degree off the ground unless you flex the

hip. If you flex the hip, you are not talking about the

straight leg raising anymore.

Q Okay. Did you perform the straight leg raising

A Yes. The straight leg raising test on up to

70 degree was negative.

Q And what are you looking for when you do a

straight leg raising test?

A The straight leg raising test, what does it do?

The straight leg raising check the irritation of

the nerve of many, what we will say, the sciatic nerve,

which is one of the biggest nerve of the body that has a lot

of roots, L-4, L-5, S-l, S-2. And it went behind the back

of the thigh, and the leg, and it has a lot of function.

Q All right. Now, when you stretch the nerve, what

are you looking for?

A Looking for irritation of the nerve causing pain,

severe pain. The patient complain of pain, radiating pain.

Doc, I feel pain going from my thigh.

What do you feel? Pain from the back of my thigh

or the back of my buttock area going up or going down.

But, again, the -- how you perform these tests,

the test is performed with the patient on what we call the

dorsal decubitus, meaning that the patient is on his back.

Dorsal, being on his back.

And then you lift the leg. This is the table and

this is the leg of the patient. That you try to lift off

the table.

If the test is positive here, meaning that there's

major irritation of the sciatic nerve or one of the roots of

the sciatic nerve.

If the test is positive right here, meaning that

it's minor irritation after 50 degree, meaning that the 50

degree is the angle of the table and the leg of the patient.

Q Did you do reflex testing of the lower

extremities?

A Yes, sir. The orthopedic examination is not

complete without checking the reflexes of the lower

extremities. If you are examining the back, you are not

checking the reflexes, the examination is not complete.

What reflexes you have to check, you have to check

what we call the patella tendon reflex and the Achilles

tendon reflex.

THE COURT: And the what?

THE WITNESS: The Achilles.

THE COURT: Achilles?

THE WITNESS: Yes.

A The patella tendon reflex is L-3 nerve root, L-4,

a little bit of L-5. The Achilles tendon reflex is mostly

L-4/L-5, maybe S-l.

That is important. Meaning that if somebody had

some problem in the if somebody has a herniated disk

problem, one has to be able to determine the quality of the

reflexes of the lower extremity to get to a good

diagnosis — to get to a diagnosis.

Q And what were the results of your tests?

A The patella and the Achilles tendon reflexes were

normal, plus two bilaterally.

Q Bilaterally. Okay.

How about muscle strength in the lower

extremities?

A Good muscle strength for the quardiceps tendon.

Q Did you check for atrophy?

A Yes, sir.

Q And what was your finding?

A No atrophy found.

Q Why would you like for atrophy?

A What is atrophy? Atrophy is mean decrease of size

of the muscle. When there is nerve damage, nerve

irritation, nerve damage, there will be some atrophy noted

in the area.

Because, as I said, a nerve, most of the time, has

two function. One, we call a motor function, which is

muscle movement. One is the sensory function. The sensory

is the area where the patient will not feel anything,

sensation, numb, numbness, sensation.

And the motor. The other one is the motory

sensation.

Q Now, doctor, what records, if any, did you have at

the time you conducted this examination?

A I had no record.

Q Okay. Now, would having the medical records in

this case have changed any of your findings?

A No. If, at the time of my examination, I had a

suspicion there was something wrong with the patient, with

the claimant.

In this case, the examination, I have to admit,

the examination was performed about one year after the

injury when the orthopedic examination, my orthopedic

examination was normal. There was no -- I could not find

anything concerning the neuromuscular system that was wrong.

Then if there was, if at the time of my

examination, there was something wrong, there was some

spasm, there was some decreased range of motion, then

probably I would have needed some more tests, more records.

MR. RAUSHER: Objection.

THE COURT: Overruled.

MR. RAUSHER: Move to strike the question.

Unresponsive.

Q Doctor, the accident happened November 23 of

2003. You examined her in February. So, it's only a little

over two months. Would that change your answer in any way?

MR. RAUSHER: Objection. Counsel is

testifying.

A No, that wouldn't change my answer. Because in my

case, based on the history, my diagnosis was that the -- on

the history, the patient sustained injury to all these areas

noted.

My thing is that there was resolved sprain of the

cervical spine, resolved sprain of the lumbar spine,

resolved sprain of the left hip, resolved contusion of the

left ankle.

THE COURT: Of the what?

THE WITNESS: Left ankle.

THE COURT: Oh, ankle.

Q Now, doctor, did you do examinations of the

thoracic spine, the left shoulder, the left knee, the left

elbow, the left wrist and hand, the left hip and the left

ankle?

A Yes. All these areas were examined because at the

time of my examination, Ms. Alicia had complaints about this

Q Okay.

A As I stated earlier, when she came in, she was

complaining of pain in the neck area, pain in the thoracic

spine area, pain in the lower back area, pain in the left

shoulder area, pain in the left knee, left foot.

And all these areas were examined. All these

areas had orthopedic evaluation.

Q Okay. And was there any restrictions of motion or

any positive findings, without going through everything you

did on those part of the body?

A The orthopedic examination was essentially

negative.

Q Now, did you find any objective clinical findings

to support her subjective complaints?

A No, I didn't find any.

Q At the time that you examined this young lady, was

she disabled?

A No, sir. She was not disabled.

Q Doctor, are you aware that MRIs were performed in

this case?

A Yes, sir. I think you told me that this morning.

Q Yes.

Doctor, do you read MRIs in your practice?

A Yes, sir.

MR. HARDICK: Your Honor, I would like the

doctor to review the MRIs that were marked as exhibits.

May we approach.

THE COURT: Step up.

{Discussion at the bench off the record.)

THE COURT: Objection is overruled.

MR. RAUSHER: Respectfully except.

THE COURT: The ones we saw, not all of them.

MR. HARDICK: Those are the only ones I'm

going to use, Judge, the ones that have the stickers on

THE COURT: If you need to move to see,

please move, members of the jury.

MR. HARDICK: There should be four.

Doctor, first of all we need a number off

that x-ray, that, you know, that little yellow tag.

THE WITNESS: I mean, no. I mean, no.

THE COURT: No, just tell us the number on

the tag before you start talking.

THE WITNESS: What number of the tag?

MR. HARDICK: I don't think you can see it.

I think it's on the back.

All right. What we're dealing with is

Plaintiff's Exhibit 21.

MR. RAUSHER: And is there a letter

associated with it? Is that. 21-A?

MR. HARDICK: Okay. So, this is Exhibit

THE COURT: Put the other ones down, please,

doctor. Just put them down.

Okay. Go ahead. All right.

Q Doctor, can you tell us the date that MRI was

taken?

A December 21, 2006. That is right here.

Q And what part of the body is involved?

A This is an MRI of the cervical spine with also a

part of the base of the cranium.

Okay. This —

THE COURT: No. Just — no. Wait for a

question.

MR. HARDICK: Okay.

Q Now, doctor, we've had testimony in this case that

there are bulging disks impinging upon the nerve roots and

the spinal cord at C-4/5 and C-5/6 based upon that

particular group of films that you're looking at right now,

those -- that particular film.

What do you see?

A To answer that question, I would have to

individualize every part of this MRI and then answer the

question.

THE COURT: You can't just say whether you

see bulges or not?

THE WITNESS: No.

Right away I can tell there is no bulging.

There is no bulging.

THE COURT: All right.

THE WITNESS: But I would love to explain

THE COURT: No, please don't, doctor. Just

say if you see bulging or not.

MR. RAUSHER: Your Honor, can I just note my

continuing objection so I don't interrupt the flow.

THE COURT: I understand.

Could you just say whether you see bulges or

not. Yes or no?

THE WITNESS: There is no bulging seen. To

bulge, meaning that to come out. There was no bulging.

Q Now, doctor, why did you say you couldn't -- you

couldn't give an opinion as to nerve roots and the spinal

cord without looking at all the films?

What did you mean by that?

A Repeat the question for me.

Q You said you couldn't reach a conclusion without

looking at all the films. Why did you say -- what did you

mean by that?

A Meaning that for me to get an idea of the MRI. To

know exactly what I'm dealing with, I have to see the film.

I cannot base -- I have to base my opinion by looking at

all — review all the film to come up with all the diagnosis

or to come up with an opinion.

And then there is no, I'm seeing there is no

bulging, and then right away I say what is a bulging disk.

THE COURT: Well, we have heard that because

we have it in testimony.

My question is did you see a bulge on this

particular film?

THE WITNESS: No, I didn't see no bulge.

Q And, if there was a bulge at C-4/C-5 and C-5/C-6,

would you see it on that view?

A Yes, yes,

Q Why did you want to look at all the films? Could

it show up in others?

MR. RAUSHER: Objection. Asked and answered?

THE COURT: Yes, sustained.

Q Doctor, do you want to look at the other views and

see what they show?

A This is good enough.

THE COURT: No, stop.

Q That's good enough?

THE COURT: Oh, that's good enough?

MR. HARDICK: Yes.

MR. HARDICK: Of that group.

No, all I meant was for that group.

THE COURT: Oh, for that group.

MR. HARDICK: We still got to look at the

others later.

Q Doctor, would you take another film. And first

thing you got to do is give us a number.

A This is would be 19, 19-A.

Q Okay. Now, 19-A, when was that taken?

A That is the MRI of the lumbosacral spine, the

lumbar spine and the sacrum here.

Q All right. And what's the date?

A The date 12-21 2006.

Q Now, doctor, looking at the L4/5 level, do you see

any herniations in that film?

A Okay. The L-4/L-5 is this level here, this level

here, this level here and this level here.

Q And what do you see?

A I see that the disk at this level is about the

same height at this level, at this level, at this level,

about the same height. There's no decrease of height of the

disk. And there is no coming out of the disk outside that

will make it a bulging or herniation, meaning that this is a

normal MRI of the lumbosacral spine.

Q Now, doctor, what's the significance of the fact

that all the disks are the same height?

A Meaning, Number One, there is no desiccation of

the disk. Desiccation meaning that the disk has lost some

of its water. There is no desiccation or losing of water of

the disk.

There is no area where the disk is coming out

pressing on what you call — that would be the cord. As you

can see, this is the cord, and it is nicely shown.

The disk is not coining out pressing on it. It's

about the same, the same configuration, the same appearance.

Q Okay. Thank you, doctor.

MR. RAUSHER: Your Honor, before that film is

moved, may I look at it for a moment.

May I just have the doctor show me where he

was indicating the L4/5 is.

THE COURT: Yes.

MR. RAUSHER

THE WITNESS

MR. HARDICK

MR. RAUSHER

I couldn't see from there.

Would you say what number.

Just would you show me which

disk you're saying is the L4/5.

THE WITNESS: Okay. L-4, L-4, L-5. This one

is L-5/S1, and this is the sacral.

This is L-4, and this is L-5. This space

here, we call it the L-4/L-5 space.

MR. RAUSHER: Thank you.

THE WITNESS: Keeping in mind -

MR. RAUSHER: Thank you, doctor. Thank you

very much.

MR. HARDICK: All right, doctor. Two more

films.

Q What's the number?

A 18-A.

Q What are we looking at?

A This one taken on 01-6 2004, January 2004. This

is also an MRI of the lumbar spine.

One has to say that the MRI, the pictures we just

saw, were of better quality than that one. But yet again,

one can see this is the space, L-4/L-5, L-4/L-5, L-4/L-5,

L-4/L-5, L4/L5 space.

Q What do you see there?

A There is no evidence of herniation.

Q Okay. Why is this one a different color, looks

like a different color of the MRIs? Is this — why is this

one so different in color than the others? Is this a

different view?

A As I said, these films is not -- these films,

these pictures, are not of good quality compared to the one

that we had in 2006.

But yet, as one can see two of them, one can see

very well two of them because with the part that is almost

whitish, that will be the disk, the bone will look a little

bit darker, and the cord cannot be seen well in this.

THE COURT: Next question, please.

MR. HARDICK: Okay.

Q Doctor, one more film.

MR. RAUSHER: Again, your Honor, before we

leave this film, can I just ask the doctor show me

where he's saying the L-4/L-5 is.

THE COURT: Just point to the L4/5. Don't

talk. Just point.

MR. RAUSHER: Uh-huh.

And going across.

Thank you.

MR. HARDICK: One more.

Q And, doctor, the number this time is 20-A?

A 20-A. This —

Q What's the date?

A One -- January 6, 2004.

Q What part of the body are we looking at?

A This is an MRI of the cervical spine, that one.

Now, you see the neck area and then you see the

part of the cranium.

THE COURT: What's the question, please?

MR. HARDICK: All right.

Q Doctor, looking at the C-4 -- the C4/5 and the

C-5/6, do you see any indication there of a bulge impinging

upon the cord or the nerve roots?

A No. In this MRI, the cord is well defined. The

cord, what is it, is this coming out here. As you can see,

there is no -- what is the disk? The disk is this matter

here that you find between two vertebrae.

THE COURT: No, we don't need that. We don't

need that real education. We've heard from several

doctors.

Just answer the question, please.

Q Are there any disk bulges there?

A No, there's no disk bulges.

Q Doctor —

THE COURT: Are you finished with the box?

MR. HARDICK: No.

THE COURT: Okay.

MR. HARDICK: Just about.

Q Doctor, is there normal lordoses in that MRI?

A Yes.

Q There's no loss of lordoses in that photograph?

MR. RAUSHER: Objection. Asked and answered.

A There is no loss of lordoses. What is the

lordoses? As I explain, when you look somebody from the

side, you see this curve here, this going in of the neck.

That is your lordoses.

Usually when you have pathology, you have spasm,

problem in this area, usually the patient will lose his or

her normal lordoses.

MR. HARDICK: Thank you, doctor.

MR. RAUSHER: Can we leave them up so I'll

start with the films.

THE COURT: Everyone all right?

439Paul - Defendant - Cross

THE COURT: Are you okay?

A JUROR: Yeah, I'm okay, just hungry.

Go ahead.

CROS S-EXAMINATION

BY MR. RAUSHER:

Q Doctor, you've indicated that normally there is a

curve to the neck, kind of a "C"; is that correct?

A Yes, sir.

Q In this film that is being shown, this I believe

is 20-A that you're using, the January 6 '04 cervical, isn't

it a fact that the arrangement of the vertebra is almost

completely straight; yes or no, please?

A Are we talking about lordoses or are we talking

about something else? What is your question?

Q Doctor --

A Your question --

Q -- is lordoses the normal curvature —

A Yes, sir.

Q And normally in the neck, there is almost a "C"

shape -

A Yes, sir.

Q - - a curve; correct?

A Yes, sir.

Q Isn't the lineup of the vertebra shown here

cervically, almost a straight line?

A It is not a straight line.

Q I didn't say it's an exact straight line. Isn't

it almost a straight line?

Doctor, look at the arrangement of the vertebrae.

A No, sir. You're asking me the question. I'm the

one who know. You ask me and I will answer.

As I state earlier, you can see that it is not a

straight line. As you can see-, the back of the neck, this

is the "C" shape of the cervical spine.

Q I asked you about the vertebra, not the back of

the neck.

The actual alignment of the bones going from

bottom to top in these images, isn't that almost a straight

A It is not a straight line. It is a smooth curve.

We call it the normal lordoses of the cervical spine.

Q Isn't it a fact, doctor, the normal lordoses would

be literally a "C" shape?

A Appearance of the "C" shape.

The normal lordoses, as I said, that's something

that can be seen, evaluated normally even without an x-ray.

You look at somebody, if he has spasm on the cervical spine.

THE COURT: You're not answering the

question.

THE WITNESS: What is the question?

MR. RAUSHER: I move to strike as

unresponsive.

THE COURT: It's stricken, please.

Just say yes or no, if you can.

THE WITNESS: The answer —

THE COURT: Just a moment, please, just a

moment.

Let me have the question again, please.

Q I asked you isn't the normal lordoses cervically

in the neck almost a "C" shape?

A The appearance of the "C" shape.

THE COURT: No, no. I asked you yes or no,

please, please.

Q Answer yes or no.

A The answer is no. The appearance of the "C"

shape.

Q What would you call the normal lordotic shape?

A I would say not a "C" shape. I would say the "S"

shape.

Q " S " ?

A Yes.

Q But the cervical lordoses doesn't make an "S". It

makes the top part of an "S"; correct?

A The middle of the "S". It's a small curve.

Q Doctor, please, we're going to save time if you

just answer the question.

When you talk about an "S", the cervical is the

top part of an "S", like a "C" . It then reverses direction

as you go into thoracic to lumbar; correct?

A Yes, sir.

Q And then it reverses again for the lumbar?

A That's it.

Q So, when we talk about an "S", I'm talking about

the top part of the "S", like a "C"; correct?

A Yes, sir.

Q That's not demonstrated in this film; correct?

A As I stated before, I say -

THE COURT: I'm sorry, doctor. It has to be

yes or no.

THE WITNESS: No. The "C" shape he's talking

about does not exist on this in his imagination. The

spine itself has an "S" shape, which means that the "S"

shape, that go curving.

I said earlier, the "C", you find the

appearance of the entrance in the cervical spine. And

then you go back again, you find what they call the

kyphosis of the thoracic spine. And then when you go

to the lumbar spine, this thing get in again. This is

the appearance of a zig sag.

A Because if I may.

Q You may.

In effect, with your finger, you're tracing going

in like a "C", then out and then making an "S"; correct?

A It is not a "C", the appearance of the "C". Not a

"C" that you can see. There is no way you can see. A

cervical spine, you cannot see. The appearance of.

Q Doctor, if there is straightening of this

lordoses, it's due to spasm; correct?

A Yes, sir.

Q And spasm is an objective sign of injury; correct?

Yes or no?

A What?

Q Spasm is an objective sign of injury; correct?

A Yes, sir, yes.

Q And, when you have straightening on a film of a

normal lordoses, that is accounted for by spasm; yes or no?

A Yes, sir.

Q Thank you.

MR. RAUSHER: May we move to the next film,

please.

THE COURT: It's up to you.

MR. RAUSHER: Yes, I would like to. May I do

it myself or shall I?

THE COURT: Well, actually.

MR. RAUSHER: That's why I didn’t think you

wanted me -

THE COURT OFFICER: What number?

MR. RAUSHER: 21-A. We'll stay with cervical

for the moment.

Thank you.

Q Now, doctor, before we proceed, am I correct that

you're not a radiologist?

A No, I'm not a radiologist.

Q And you looked at these films for the very first

time today at the suggestion of the lawyer; correct?

A Yes, sir.

Q Of the lawyer for the Transit, for the Defendant?

A That's fine, that's fine.

Q You didn't ask to see them, did you?

Q You've never asked to see them before today?

A Yes, correct.

Q Have you ever asked to see a single medical record

with regard to Ms. Rutledge before this moment?

A No, sir.

Q Okay. So, would it be fair for me to say that the

defense of this case had nothing to do with your review of

these films, because you haven't done that until just now?

MR. HARDICK: Objection.

THE COURT: Yes, sustained, please.

Q Have you ever offered an opinion with regard to

these films for the lawyer for Transit before this moment?

A This is the first time I'm seeing them, the second

Q Now, we're now looking at 21-A. This is the

December 21 '06 cervical; correct?

A Yes, sir.

Q Now, looking again at the vertebra in the cervical

range, are you saying that that is a normal lordoses and

that that is not straight?

The vetebral bodies, they are not straight in that

A The answer --

Q Yes or no, please.

A The answer will be it is a normal cervical

lordoses.

Q Doctor, I'm going to ask you again. In this image

MR. HARDICK: Objection. Asked and answered.

Q In this image, this is the middle second from the

left, are the vertebra not virtually in a straight line?

A The answer is that, sir --

Q Is yes or no, doctor?

A --it's normal cervical lordoses.

Q Doctor, do you know the meaning of yes and no?

Q' Then I'm going to ask you when I say yes or no,

you confine your answer, please.

Q Respectfully, yes or no.

MR. HARDICK: Or he can say I can't answer it

yes or no.

Q You can say that, too. But if you can, save us

time, please, and answer yes or no.

A Okay, sir.

Q In the image I've just described -

MR. HARDICK: Your Honor, can the plaintiff's

attorney move back behind the lecturn.

MR. RAUSHER: I can't and point, but I will

try. Thank you.

Q In the middle row, second image from the left, is

the alignment of the vetebral bodies, the bones, not a

virtual straight line?

A It is not —

Q Yes or no?

A The answer is no, sir. We have a normal cervical

lordoses.

Q You see a curvature to those bones; yes or no?

A I don't know what you mean. How 1 can answer

that? Normal curvative of the bone. That word does not

exist for the cervical spine, sir.

Q "Curvative" does not exist?

A The curvative just exist, but the curvative --

Q Did you say curvature does not exist for the

cervical spine?

A I'm saying this word that you are using does not

exist for the cervical spine.

Q Does the word lordoses in medicine, not refer to

curvature; yes or no?

A Yes, sir.

Q Thank you.

Now, the disk heights, are they all preserved?

You were asked about disk heights. You were asked

about disk height in the lumbar. Are the disk heights all

preserved here in the cervical area?

A Yes, sir.

Q Is this a normal healthy person of

approximately — now she would be approximately 24?

A Very normal, sir.

Q No evidence of other injury?

A Very normal based on this MRI, sir.

Q No evidence of other injury; yes or no?

A What other jurors are you talking about?

Q Yes or no?

THE COURT: He doesn't understand the

question. You mean this case or something else?

Q I'm saying, do you see any evidence of some

injury?

THE COURT: Of some injury.

A The —

Q It's yes or no, doctor.

A No injury.

Q Do you see any evidence of arthritis?

A Normal MRI.

Q If there were arthritis, that might help to

explain her symptoms; yes?

Q Well, could arthritis explain symptoms such as Ms.

Rutledge made?

THE COURT: Sustained.

Q Did you find any evidence in the MRI to explain

her complaints; yes or no?

Q Are you calling into question her complaints?

THE COURT: Rephrase it, please.

Q Do you accept Ms. Rutledge's complaints as taken

at the time of your examination?

A Always have to take the patient complaints into

consideration. I never, what you call it again, I never put

aside the patient complaints.

Q So, you're not testifying today that she didn't

have these problems or complaints; correct?

Q And, when you have your own private patients, when

they come in complaining, you accept their complaints; yes?

A Yes. I did accept her complaints.

Q Okay. Now, doctor -

A -- and I took note of her complaints.

Q -- keep this shorter. It's going to go very long

if you don't keep it short.

A It doesn't matter me for that. You know, the

long, whatever portion you ask me, ask me for, you cannot

tell me that if it doesn't go, I will take long, because

this is intimidation.

Q Did you find anything in any of these MRIs that

you have reviewed for this jury that explains her

complaints?

A No. I am facing with normal MRI of the cervical

spine.

Q Now, did your attorney happen to show you the

radiologist report that was associated with each of these

films?

A No, I don't remember seeing them.

Q Did you care about what the radiologist said?

A You talking about my --

Q Yes or no? Did you care what the radiologist

A Somewhat.

Q Somewhat. So, did you ask to see the reports?

A I didn't ask to see the report.

Q Yes or no?

A I did not ask to see the report.

Q Do you know that they're available right here?

THE COURT: No, please. Move on, please. He

said he did not.

Q So, the lawyer didn’t show you and you didn't ask;

is that correct?

A That's correct.

Q Would it surprise you to find that the radiologist

MR. HARDICK: Objection. Objection, your

Honor.

MR. RAUSHER: In evidence, your Honor.

Q Would it surprise you to find -

MR. HARDICK: Why can't the 2006 one go in?

I don't understand this. 2004, he's going to put in

reports?

This is counsel's "I don't speak" objection.

THE COURT: Step up, please.

(Discussion at the bench off the record.)

Q Doctor, I'll ask you again.

Would it surprise you that the radiologist for the

cervical 2004 films found a straightening of the lordoses?

MR. HARDICK: Okay.

Are we finished with the shadowbox?

MR. RAUSHER: No, I'm not. Judge, please.

Q Doctor, would it surprise you that the original

reading radiologist for the 2004 cervical films found a

straightening of the cervical lordoses?

A Somewhat.

Q That would surprise you somewhat?

A Yes.

Q Not completely?

A No, not completely.

Q Now, the 2006 cervical that you reviewed, would it

surprise you that the radiologist found bulging disks at

C-4/5 and C-5/6 impinging on the nerve roots; would that

surprise you?

Yes or no?

A I don't see that.

Q Yes or no?

A Very surprising.

Q Very surprising.

A Yes.

Q So, you take exception. You disagree with the

radiologist in this case; is that correct?

Doctor, yes or no?

A Yes.

Q And that was a treating radiologist. Had nothing

to do with litigation or trial.

What's the last speech?

The objection is sustained.

Q That was a treating physician in this case;

correct?

A The radiologist --

Q Yes or no, doctor?

A The radiologist --

Q Doctor, you're not here to say what you want.

Q Yes or no?

A No. The radiologist is not a treating doctor.

Q Not part of the treating team?

A He doesn't see the patient. He just see the

x-ray. He's not a treating physician.

Q Can a radiologist be sued for malpractice, doctor?

MR. HARDICK: Objection, your Honor.

Can we get through this, please. It's really

overtime.

Q A radiologist is part of the treating team of

doctors, is that not true, doctor?

THE COURT: He said he wasn't the treating.

Q Now, in the lumbar films, would it surprise you

that in both sets of films, the radiologist said that there

was, in fact, a herniation, two separate films, two years

apart, that they found herniation with impingement; that

would surprise you, too?

A Very much,

Q And, if Dr. McMahon, an orthopedic surgeon,

Harvard trained, from Lenox Hill Hospital, said he found the

same things, that would surprise you, too; correct?

A Very much.

MR. RAUSHER: May we put up the lumbar film,

the 19-A, please.

Q Now, you indicated that you saw no evidence of

herniation; is that correct?

A Right.

Q And that all the disks were equally hydrated; is

that right?

A I said normal height.

Q Normal height.

And you talked of dehydration or desiccation?

A That's an indication of when there's decreased

height.

Q Desiccation is drying, correct, loss of water; yes

or no?

A Yes, sir.

Q Now, in the L-4/L-5 that you pointed out to me, do

you see a dark line through the center of the disk, through

the center from left to right of the disk at L-4/L-5?

A Want to show it to me. I don't see it.

Q You indicated that this is the L-4/L-5 disk;

correct?

A Yes.

Q Do you see a dark line running all the way from

left to right, all the way from left to right, both images

in the center, and on both sides?

THE COURT: You're in front of your exhibit

if you really want the jury to see.

MR. RAUSHER: I'm sorry.

Q Do you see a dark line running all the way from

left to right through the center of the disk?

A I see it, yes.

Q And do you see that same line in any of the other

disks?

A That —

A All of them —

A All of them have that. That doesn't mean

anything.

Q Doctor, when a normal disk is properly hydrated,

isn't it all white?

A That doesn't mean --

Q Yes or no?

A -- anything.

Q Doctor, I didn't ask what it means.

Do you — when a disk -

Q -- is more than hydrated —

MR. HARDICK: If he can't answer it yes or

no, he can give an explanation.

THE COURT: Can you say yes or no?

THE WITNESS: This is the first time I heard

somebody talking about the black line in the disk.

THE COURT: Okay. Just say this to me.

Can you answer yes or no?

THE WITNESS: No.

THE COURT: If you cannot say yes or no, then

say I can't say yes or no. All right. Don't go into

an explanation unless he asks you for the explanation.

MR. RAUSHER: And if you do not understand my

question, ask me.

THE COURT: No, please, don't give that

speech. Ask the next question.

Q When a disk is normal and well hydrated with

water, it's white; is that correct?

A That's the normal color of the disk, white.

Q Do you see an indentation into the white

anatomical structure behind the disks at that level? Do you

see where it's bent slightly?

Do you see the bend in the white in these images;

yes or no?

457Paul ~ Defendant - Cross

Q You don't see any indentation?

A What I see there is -

THE COURT: Doctor, please, he asked you yes

or no.

THE WITNESS: No.

Q That white structure is the thecal sac; correct?

A What is that?

Q That write structure I'm referring to now is the '

thecal sac; correct?

A No, sir.

Q The white object that goes from top to bottom -

THE COURT: He said no.

Q -- behind the spine is not the thecal sac

containing the spinal cord?

A No, sir.

Q What is it?

A That's one end covering the —

Q Doctor, what's the name of that structure in

medicine?

A There is no name for it, sir.

Q We just found it today?

A Huh.

Q We've just discovered it today?

THE COURT: Mr. Rausher, we are well passed

our lunchtime, please.

Q Do you know what that structure is?

THE COURT: The medical name?

MR. RAUSHER: Any name.

THE COURT: Any name.

A That's the cord, sir.

Q The spinal cord; correct?

A Yes, sir.

Q When the spinal cord proceeds down from the base

of the skull, is it not in the thecal sac?

A It is in the sac, called thecal sac.

Q And isn't that white structure -

A The white structure, what we are seeing here, is

the cord itself, not the thecal sac, sir.

Q Really. So, you can see the cord, and you don't

see the thecal sac in this film; is that your testimony

under oath?

A What is he talking about? I'm saying the white

structure is the cord, not the thecal sac.

Q Then would you show us, please, the thecal sac.

A The —

Q Would you please show us the thecal sac. I'm not

asking for any testimony. Just the use of the pointer.

A The white --

Q Please, sir, not a word. Would you show us.

A I have to explain myself.

Q No, you don't, doctor.

THE COURT: No, don't say anything, doctor.

He just wanted you to point.

Q I just want you to point.

A Okay.

THE COURT: Thecal sac.

Q Is that not the white structure I just showed you?

A This is the cord, and this is the thecal sac which

is covering the cord that you can hardly see well. The

white tissue here is the cord.

THE COURT: All right. Fine, doctor. Stop,

A The cord is covered by a sac. We call it thecal

sac. But, in the thecal sac, you have to follow it at the

end of the white structure, which is the cord.

If you're talking about the thecal sac, this is

this line here, line here, line here covering, and here,

THE COURT: All right, doctor. That will do

please, please.

MR. RAUSHER: Move to strike as

nonresponsive.

THE COURT: It's stricken.

MR. RAUSHER: I never asked for any

testimony. I'm done with the films and the shadowbox.

You can put the box down.

Do you have much more?

MR. RAUSHER: I don't know how to define

much, but I'm not done in a few minutes.

I don't know how to define much, but I do

have a bit, certainly not a few minutes.

THE COURT: Step up, please.

Step up, please.

THE COURT: We'll take — we're going to

suspend at this time for lunch. I must admonish you

not to discuss this matter among yourselves or with

anyone else until it's turned over to you for your

deliberations. I think that's as far as we can push.

We'll see you in an hour.

THE COURT OFFICER: All rise. Jury exiting.

(Luncheon recess.)* * *

461A F T E R N O O N S E S S I O N

THE COURT OFFICER: All rise. Jury entering.

(The jury entered the courtroom.)

THE COURT: Be seated, please.

CROSS-EXAMINATION (Continued.)

BY MR. RAUSHER:

Q Good afternoon, doctor.

A Good afternoon, sir.

Q We went right into the films because the shadowbox

was up, but now I would like to resume without those.

When you first took on this case, you knew that

you were not a treating doctor for Ms. Rutledge; correct?

A Correct.

Q And you never had an intention to be a treating

doctor; is that correct?

A Correct.

Q You never anticipated that any physician or health

care provider would rely on any of your opinions; correct?

A Not really.

Q Sorry.

Q You knew that it was for the purpose of a

defendant; correct?

A Yes.

Q If you were wrong in any of your opinions, it

wasn't going to affect her treatment plan?

Q Correct?

A Correct.

Q What were the consequences of your being wrong?

MR. HARDICK: Objection. What's the

relevance?

THE COURT: Sustained. Sustained, please.

Q As you sit here today, do you have an independent

recollection of your examination on February 12 of 2004 of

Ms. Rutledge?

A No, sir.

Q From that time until today, how many of this type

of defense examination have you done?

A Maybe 50.

A Maybe, yeah, estimation.

Q This is from 2004 to 2010?

A Yes, sir.

Q Would it surprise you that you testified many

years ago that you were doing 15 to 20 a day?

Q Yes.

Q Do you recall testifying in the case of Montelbano

versus Carfora in the United States District Court, Eastern

District of New York, on December 6, 2000 before the

Honorable Robert Levy, United States Magistrate Judge and a

Do you recall giving testimony in that case?

A No, I would not recall that case.

Q I'm sorry.

A I would not recall. I would not recall.

Q You would not recall?

Q Well, how many times have you testified in court

on cases such as these?

A A few times.

Q What's a few?

A I could say this year maybe that's the second time

I'm testifying in a case like that.

Last year I don't remember how many cases I

testify. Maybe a few, one, two, three, four. I don't

remember exactly.

Q How about in the last ten years?

A The last ten years, I wouldn't be able to give you

a number, sir.

Q Would it be fair to say that you were testifying

eight to ten times a year?

A That could happen, you know, but that would be and

for — I testify and for the defendant and for the

plaintiff.

Q And, your examinations, like the one you did on

Ms. Rutledge, do you know how long this one lasted?

A As I stated earlier, I do not remember this

particular patient. I do not remember this case at all.

Q Well, let me ask you, doctor. Do you take notes

at the examinations?

A I do take notes.

Q Do you take them during the exam, after the exam

or something different?

A Depending. During the exam and after the exam.

Q And do you note when it starts and when it ends?

A I'm sorry.

Q Do you make a note of when the exam starts and

when it ends?

A No. I've never done that. I have not done that,

Q Would you agree that usually for this type of

examination, you take 15 to 20 minutes?

A It would be more. Mainly, in this particular

patient -- patient, that she has — I have to examine the

cervical spine, the lumbar spine, the shoulder, this

examination will take, first evaluation, will take about 40

minutes. But as I — I'm clocking myself, I do not clock

myself when I examine the patient and I do not remember this

Q I'll ask if you remember giving this testimony

under oath in the Montelbano case.

"QUESTION:" —

This is Page 53, Line 14.

-- "Doctor, do you have any idea how long

your examination of Mrs. Montelbano was?

"ANSWER: I do not have any recollection, but

usually for this type of an examination, that would

take about 15 to 20 minutes.

"QUESTION: You don't remember that

examination?

"ANSWER: I do not.

"QUESTION: You see approximately 15 to 20

patients a day, and you did this in five hours. And,

in the interim, you then take your notes, read your

notes, transcribe your notes yourself, all within that

five-hour period?

"Yes, sir."

Do you recall that testimony under oath on

December 6 of 2000?

A December 6, 2000, no, sir, I would not remember

Q Would the testimony I've read be accurate that you

saw 15 to 20 such patients a day?

Let me hear the whole question.

Q That you saw, you said before, 50 over the last 10

years. So, I'm asking, does this now help you remember that

you saw 15 to 20 such patients a day?

THE COURT: In 2000?

MR. RAUSHER: That's when the transcript is.

THE COURT: Well, say the whole question

MR, RAUSHER: Which is within the last 10

years.

Q So, doctor, within the last 10 years, is it not

true that you would see 15 to 20 such patients a day?

A The answer is no, sir, in my recollection.

Usually, in my normal hours of work, it would happen I see

15, 20, up to 30 patients. But it cannot be 30 patients of

evaluation. It cannot be 30 patients I see a day like

Ms. Alicia Rutledge, no.

They would send them to me. I would see them with

my normal patient. I am, you know, actively engaged in the

practice of orthopedic surgery.

Q Now, doctor, you maintain an office at 142

Joralemon Street in Brooklyn?

A I used to.

Q Sorry.

A I used to.

Q You used to. And that was for your private

patients; correct?

A Yes, sir.

Q You never saw defense examinations there, did you?

A Yeah.

Q Did you also have an address at 2363 Coney Island

Avenue? Sorry. 2623 Coney Island Avenue, Brooklyn?

A That was a long time ago. I used to share this

office with a chiropractor. But I have not been going to

this place long time. Joralemon, that's where I started my

practice in 1984. But, since 1997, 1999, I move to where I

am now, 3621 Glenwood Road.

Q Well, how long have you been testifying in cases

like this?

A Since I was a resident.

Q When was that?

A Since I was a resident.

Q Yes. When? What year was it?

A I was a resident 1980 to 1983.

As I said, that was in the program at Columbia

University, Harlem Hospital.

And, at time, when my resident, you take care of a

patient. At time, they might call upon to you testify. It

could be, you know, a gunshot wound, it could be a car

accident, it could be for anything, orthopedic being a

trauma specialty.

Q Did you have a set amount that you charge for

examining someone for the defendants and/or your report?

A Yes, sir.

Q And how much let's go back to 2000. How much

did you charge for that?

A 150.

Q Did that change from the year 2000 till the

present?

A Unfortunately, that has not changed.

Q Same?

A Same.

Q That $150 as an orthopedic surgeon includes taking

a history, physical examination, dictating a report,

checking over the report, everything?

A Yes, sir.

Q And you’re saying that that takes you half-hour,

45 minutes or even longer?

A Depending on the case. As I said, every case is

different. Every examination is different.

In this particular case, since the patient has

multiple complaints about almost everywhere in her body,

then I'm assuming this examination took longer than somebody

who would come in with a knee exam, and I would get the

information and examine the knee. Somebody will come with a

neck problem. Then I will examine the neck and the

examination is over.

In this particular, I assisted on that. I do not

remember exactly this patient, and I do not remember how

long it took me to do this examination.

But I'm saying because she has multiple

complaints, that will take a little bit longer than usual.

nonresponsive.

Q Doctor, again, if you could keep your answers

shorter, we can get through quicker, please.

Q Did you have a standard fee?

MR. HARDICK: Objection, your Honor.

Q Did you have a standard fee in the year 2000 for

coming to court to testify?

A Yes, sir.

Q How much was that?

A That was 5,000.

Q In 2000?

A Yes, sir.

Q In the case of Montelbano, was there any reason

you would have charged a different amount?

A Sir, I do not remember the case of Montelbano that

you're talking about.

This case, after three month, you would ask me,

over three month, I would not remember this case.

Q I'll ask if you recall the following testimony,

of that same transcript under oath.

"QUESTION:" —

, Line 3:

"QUESTION: Doctor, how much did you get paid

for that examination and report?

"ANSWER: $150.

"QUESTION: How much are you getting paid

today?

"$1,000."

Does that refresh your recollection of what you

charged to testify in the year 2000?

A That not refresh anything, sir.

Q Sorry.

A That does not refresh anything.

Q Now, you continue to testify about how often you

would testify.

Is it true that you would sometimes testify as

much as -

THE COURT: I'm sorry. I'm sorry. That's

not -- question and answer, page and line, please.

MR. RAUSHER: Sorry. I will.

Q Did you ever testify that sometimes you were

called to court as much as twice a month?

A I do not recall this statement, sir.

What I do know is that this year, maybe that's the

second time or the first time. Last year, maybe I testify

2, 3 times. I do not remember.

MR. RAUSHER: Page 61, Line 12.

"Doctor, have you testified before?

"ANSWER: Yes, sir.

"QUESTION: With what regularity do you

testify?

"ANSWER: I have -- again, I cannot answer

one yes or no. I have a busy practice. I testify

sometimes. Most of the time for the plaintiff, and

sometimes for the insurance or the one that sent me the

patient.

"THE COURT: Defendant?

"ANSWER: I would say sometimes. I will

testify twice a month. Sometimes I will testify once

every three months. And sometimes, depending on a busy

schedule, they call me to testify and I say I cannot

testify.

"This one, if there is a subpoena, then I'm

forced to appear.

"QUESTION: In the last year, how many times

have you testified?"

Now on Page 62.

"ANSWER: I'm sorry.

"QUESTION, "how many times have you testified

in the last year?

"ANSWER: In the last year?

"QUESTION: Today is what, the 6?

"From December 6, 1999 to December 6, 2000,

how many times did you testify?

"ANSWER: Maybe eight, ten times."

Q Do you recall that testimony under oath on that

occasion?

A I do not recall that. As I told you, you're

talking about something that happened in 2000. I do not

have any recollection of that, sir.

Q Well, when you started testifying and saying that

you've testified a few times before, did you mean as much as

eight to ten times a year for over ten years?

A My answer was clear, sir. I said for this year,

probably I testify twice, or once or three time, not more

than four time that I can — I'm sure of that.

Last year, I testify maybe two, three times a

year. I do not keep track how many time I testify.

But I'm telling you for this year and for last

year, I have testified maximum three or four time in cases.

MR. RAUSHER: Move to strike the portion

nonresponsive.

A It's not responsive. I'm telling you the reality

of things. I do not remember this case of 2000 you are

talking about. That was ten years ago.

nonresponsive.

THE COURT: It's stricken.

Q Doctor, have you been paid in connection with

coming here to testify today?

A Yes, sir.

Q Have you already been paid?

A Yes, sir.

Q When did you receive payment?

A Last night.

Q How much were you paid?

A 4,000 for the time I would be spending here away

from my patient or away from my practice.

MR. RAUSHER: Objection. Move to strike the

portion nonresponsive.

MR. RAUSHER: I only asked how much.

Q Doctor, you said your regular fee ten years ago

was 5,000. Will you explain to us why you charged less ten

years later for this case today?

A It varies, you know, it varied. At time -- you

have a set fee. At time, they will call you depending on

the day, depending on your ability. I could not explain

that. You will have to go to my manager to explain to you,

you know, all these details, you know, how my fees varied.

Q Now, you've told us that you had a 100 percent

normal examination of Ms. Rutledge on February 12, 2004;

correct?

A Yes, sir.

Q You didn't find a single thing wrong; correct?

A I'm sorry. I did not, sir.

Q Did you know that by that time, she had MRIs

taken?

A I didn't know that, sir.

Q Were they given to you?

A No, sir.

Q Were you made aware of their existence?

MR. HARDICK: Objection. Asked and answered

earlier.

475Paul - Defendant ~ Cross

Q Did you ask for the medical records in this case

before performing your examination? Yes or no?

A Asked and answer this question, you know. If —

MR. RAUSHER: Your Honor, please.

A No, I didn't ask. If the examination -

THE COURT: Stop talking then, please.

THE WITNESS: Okay.

Q Before writing your report in this case, did you

request them? Yes or no?

A No, sir.

Q Were you aware that an EMG was performed before

you examined this patient?

A No, sir.

Q Were you ever given those results?

A I'm sorry.

Q Were you ever given those results?

A No, sir.

Q Did you ever request them?

A No, sir.

Q Did you ask for the emergency room records?

A No, sir.

Q You were aware that she went to an emergency room?

A The day after, yes, sir. Not the same day.

Q Did the Transit Authority provide you with a

single document before your examination?

A No, sir.

Q Am I correct that the only way you know about this

accident is through the history taken from Ms. Rutledge?

A Yes, sir.

Q Transit Authority didn't give you any facts of the

case either, did they?

A What do you call facts of the case?

Q Well, they didn’t give you any documents. They

also didn't call or advise you what the case was about, did

A No, sir.

Q So, she showed up on your office doorstep, and you

had no clue why she was there except to be examined; yes?

A Yes, sir.

Q Is an MRI an objective test?

THE COURT: Is what?

MR. RAUSHER: An MRI an objective test.

A Yes.

Q Is an EMG an objective test?

A Not as the MRI.

Q I'm sorry.

A Not as the MRI, because the EMG, you have to have

the collaboration of the patient.

Q Is an MRI a digital machine? I'm sorry. Forgive

me. Withdrawn.

Is an EMG a digital machine?

A Yes, some of them.

Q And does it measure electrical responses in

hundredths and thousandths of seconds?

A I don't know about that. I know it is a test that

check the integrity of the nerve, but I would not follow

certain reasoning.

Q Have you ever referred one of your own patients

for an EMG?

A Yes, sir.

Q Why?

A When --

Q Why?

A That's what I'm answering.

Q Yes.

A If I examine a patient of mine with problem, let's

say, a part of the body, the lumbar spine, and the patient

has not only symptoms, but findings that can correlate to

the symptoms, I would — when I say findings, numbness,

tingling sensation, area of numbness that correspond to a

nerve root, then I will refer the patient for the EMG.

Q That's when you would send for what reason.

Do you rely on results of the EMGs on your own

patients?

A The exam has to be taken in consideration. As a

physician, I cannot rely on one exam. I would take it in

consideration.

Q Well, is it one of the tests that you rely on in

your own practice in the diagnosis and treatment of your own

patients; yes or no?

A Yes, sir.

Q Do you have any reason to question the EMG result

in this case based on the actual test results, the

interpretation?

MR. HARDICK: Your Honor, he's never seen

A I have 10 million of reason to question.

THE COURT: I'm sorry.

THE WITNESS: I have 10 million of reason to

question the EMG.

THE COURT: Okay.

THE WITNESS: Because my examination was

normal. As a musculoskeletal doctor, I would have

10 million reason to question the EMG.

nonresponsive.

Q I asked you, doctor, based on the actual results,

not the interpretation.

THE COURT: Well, first ask him if he knows

the results.

MR. RAUSHER: Okay.

Q Doctor, have you been shown the EMG results?

A No, sir.

Q In the same way that an MRI is a film and then

someone interprets it, the EMG gives digital computerized

data; correct?

A Yes, sir.

Q So, I'm not asking you if you agree.with an

interpretation. I'm asking, did you review the EMG results?

A The answer is no.

Q Were they shown to you by defense counsel?

Q Were you made aware that they're sitting right

here in evidence before you?

A You are telling me that now. I said I didn't see

the EMG.

Q Did you ask to see them?

A I came today. I didn't see the EMG.

Q Did you ask -

Q -- to see it?

A No. I was not here to review the EMG. I was here

to give testimony of an exam, an objective exam. I was here

to give testimony on an examination I performed on February

12, 2004.

Q Well, but you also for the first time ever read

MRIs —

THE CODRT: Don't argue with him. Ask a

question, please.

Q You were given MRIs to read in this case today;

correct?

A This morning, yes, sir.

Q Were you given the EMG to look at today?

A No, sir.

You don’t have to keep asking the same

question. It won't change.

Q Now, doctor, with no records in front of you, with

a perfectly normal examination of Ms. Rutledge, therefore

you must conclude that she was not injured; correct?

A Yes, sir.

Q You issued a report in connection with your

examination; is that true?

A I'm sorry. What did you say?

Q You issued a report as a result of your

examination; is that true?

Paul - Defendant - Cross

A Yes, sir.

Q The report was based on your handwritten notes

from that exam?

A The report was based on my examination.

Q Did you bring your notes today?

Q Where are they?

A My note are all include in my examination.

Q I didn't ask you that.

Where are your handwritten notes?

A I don't have them.

Q Why not?

A Because they all, handwritten note, are included

in this.

MR. RADSHER: Move to strike as

nonresponsive.

Q Where are your handwritten notes?

A I don't have them.

Q Why?

Withdrawn.

A Because -¬

THE COURT: Just a moment, please.

Q If you say you don't have them, where are they?

A They are not here.

Q So, where are they?

A They were not kept in file because all the

information the purpose of taking the handwritten note is

to dictate the examination, and all the information taken

are in this report.

Q Doctor, could there be an error from the

handwritten to the typed; is that possible? Yes or no? Yes

or no, doctor?

A No, sir.

Q In all the years of your practice, you couldn't

make one error? A typist couldn't make one error?

A This note, as I said, was — this report was

reviewed, and there was no question of making an error here.

The examination is exactly what it was on 2004 on

this patient. That's what it is.

Q Doctor, in fact, you destroyed those handwritten

notes; yes or no?

A This answer —

MR. RAUSHER: Your Honor, please.

THE COURT: Doctor, can you say yes or no?

A No, I did not destroy them. This —

THE COURT: All right, stop. You said no.

Please stop.

Q Who did?

A Nobody did.

Q Do you destroy your handwritten notes after you

make the report?

MR. HARDICK: Objection to the term

"destroy". What does that mean? Does it mean burn up

or something?

Q Doctor, when you make your reports -¬

MR. HARDICK: Object to the form. Ask him if

he discarded them. That's a different question,

Q Doctor, when you make your reports in these cases,

do you destroy your handwritten notes?

A I do.

Q Yes or no?

A I never destroy --

Q Never?

A -- my written note.

As I said, on every patient I see in my office, I

see the patient. I dictate. And then, you know, at the

end, this — upon any patient, even my private patient, the

report I dictate, this is the product of the examination

with everything included in the report.

THE COURT: Well, that's not the question.

The question is what happens to the

handwritten notes?

nonresponsive.

A The handwritten note is there.

Q Doctor, do you recall giving testimony under oath

on May 8, 2001 in the case of Harold Davis versus Branford

Estates before the Honorable Martin Schneier in Supreme

Court, Brooklyn?

Do you recall that testimony, doctor? Yes or no?

A No. Answer again, I do not even, if it is six

month from now, I will not recall testimony I give in this

patient.

MR. RAUSHER: Beginning Page 2 9, Line 25.

"Doctor" -- under oath.

"QUESTION: Doctor, when you prepared your

report and had it" -¬

Now, Page 30.

-- "typed up, did you then throw away the

notes that you made with respect to the physical?

"ANSWER: The notes were taken for the

purpose of this evaluation. After the — after I have

the report, there's no need to keep them.

"QUESTION: And you destroyed them, yes?

"ANSWER: Yes."

Q I'll ask you again. In the course of your

practice, after you finish a report, isn't it a fact that

you destroy your handwritten notes?

A Again, the word "destroy" does, in this particular

case, does not apply. I do not destroy anything.

Q Doctor, do you recall in the same case giving the

following testimony:

MR. RAUSHER: This is a report at 28 of 42 in

this section.

"QUESTION: Doctor, when you prepared your

report and had it typed up, did you then throw away the

notes?"

Forgive me. Forgive me, Judge.

This is a -- it's a separate copy, but it's

the same section. So, I don't want to miss anything.

Q You know when you did that exam and you had those

notes, that you may well be called upon to testify in court;

correct?

A At time.

Q And you understand the significance, the

importance of this?

A Most of the time, they don't call me. At time,

Q But you can't know at the time. All you know is

that you might be called upon to testify; correct?

A Yes. Joyce Fisher, C.S.R., Official Court Reporter

Q And, in other cases, ten years ago, you knew that

attorneys would ask you for these handwritten notes?

Q Correct?

THE COURT: Yes, sustained. Improper form.

Q This is not something new that has come up in your

practice?

Q Correct?

MR. HARDICK: Could we get to something of

substance.

Q This is not the first time you've been confronted

with this issue of the missing handwritten notes; is it?

THE COURT: Overruled, overruled.

You may answer.

A Repeat the question again for me.

Q This is not the first time that you've been

confronted with the issue of missing handwritten notes -¬

Q — from your examination; correct?

MR. HARDICK: Objection. Joyce Fisher, C.S.R., Official Court Reporter

MR. HARDICK: Objection to the form.

MR. HARDICK: Confronted or asked a question?

A As I said, there was no question of missing note.

This is the same procedure I use all the time.

The patient come to my office, I talk to the patient, I

examine the patient and, if there is some notes to be taken,

I take it.

And, this examination, we dictate them. We

dictate them and then they bring the dictation to me, and I

review it and I sign.

The question of destroying, you know, in the form,

destroying the examination, destroying everything, you know,

I'm not destroying.

THE COURT: Well, doctor, the question is

what happened to the handwritten notes? That's all

that's being asked.

A The answer is, I'm certain, is that the

handwritten note is there in this examination.

Q In your private practice, doctor, can you keep

your handwritten chart; yes or no?

A No. This is the same thing. And I just explained

that. Every time I examine the patient -¬

THE COURT: Stop talking, doctor.

The answer is no.

Move on, please.

Q In your private practice, do you obtain prior

medical records and test results?

A Depending on the case. Each case is different.

Q Well, let's go back to what I started with a

minute ago.

We said negative exam, you had no records, so,

therefore, you found no evidence of any kind of injury;

correct?

Q In your report of February 12, 2004, isn't it a

fact that you have quite a few diagnoses of injuries to

Ms. Rutledge that you causally related to this incident; yes

or no?

A Yes, sir, by history.

Q Doctor, please. There's no question.

And let's break that down.

You found that the injuries that you talked about

in your report were caused by her incident of November 23,

2003; correct?

A Based on the history.

Q Yes or no?

A Yes.

Q Resolved sprain of the cervical spine; yes?

A Yes, sir.

Q Resolved sprain of the thoracic spine; yes?

A Yes, sir.

Q Resolved sprain of the lumbar spine?

A Correct.

Q So, that's virtually top to bottom the entire

spine; correct?

A Yes, sir.

Q Resolved sprain of the left shoulder. Resolved

sprain of the left knee. Am I correct so far?

A Yes, sir.

Q Resolved contusion of the left elbow.

Resolved contusion of left wrist and hand.

Resolved contusion of the left hip.

Resolved contusion of the left ankle.

Correct?

A Yes, sir.

Q Were those competent producing causes of pain and

limited range of motion for Alicia Rutledge?

A Not at the time of my examination.

Q Are you offering any opinion to this jury about

the day before your exam?

A My opinion — Joyce Fisher, C.S.R., Official Court Reporter

Q Yes or no, please?

A I cannot answer by yes or no. I have to make a

sentence. Can I make a sentence?

Q Please.

A My opinion based on the history. The history was

that she sustained injury to the cervical spine.

My diagnosis was that she sustained this injury

based on the history. But at the time I examine her, I

didn't find anything. That's what I put, that she has

resolved sprain of the cervical spine, resolved on all part

of the body that she complain of to me.

Q So, I'll ask again.

Are you offering an opinion of how she was the day

before your exam?

A The day?

Q The day before your exam. Does your opinion cover

A The day before the exam?

Q Yes.

A I don't understand the question.

Q When you said that she had these resolved

injuries, do you know her condition the day before your

A If —

Q Yes or no, please, doctor. Yes or no. Joyce Fisher, C.S.R., Official Court Reporter

A This is before the exam.

You know, I can take it in the sense the day,

meaning that right after the injury, or two weeks after the

injury or three weeks after the injury.

But if it is, if I have to take it the day before

the exam, meaning February 11, 2004, meaning that she was

fine on February 2004, February 11.

nonresponsive.

Ask the question again.

Q Doctor, I'm going to ask until you please answer

yes or no. Are you here to tell us her condition the day

before your exam?

A Repeat again for me, please.

Q Are you here to tell us Ms. Rutledge's condition

the day before your exam?

A Yes, sir.

Q How about two days before?

A Yes, sir.

Q Three days?

A Yes, sir.

Q And what is the basis of your knowledge of her

condition in the days before your exam?

A If there was something the day before, there is no

reason for me not to find something twenty-four hours after.

If you ask me what her condition was maybe three

weeks after the injury, my answer would be I don't know her

condition three weeks after the injury.

Q Doctor, since you found injury to ten parts of her

body, including her entire spine, how do you know which day

they resolved?

A Which day?

Q Yes. You said they resolved. When did they

resolve?

A There is nothing spontaneous in nature. If you

have a sprain or injury, you cannot resolve overnight 12

hours, 24 hours overnight.

Q So, without medical records, you can tell us how

long she suffered from these injuries?

A I didn't say that. You're going from here and

there. Then it's hard to follow you.

Q Can herniated disks and bulging disks be caused by

trauma?

A ' Yes, sir.

Q Radiculopathy that you told us before, isn't that

an assault to the nerve?

A Did I say that too before?

Q Is radiculopathy an assault to the nerve?

A Yes, sir.

Q Causing swelling of the nerve?

A Yes, sir.

Q And it can be a partial laceration or a complete

rupture of the nerve; is that correct?

MR. HARDICK: Objection to what could be.

MR. HARDICK: Why don't we talk about this

Q Would a positive EMG result for the L-4/L-5 on the

left result in symptoms that could include numbness,

tingling and weakness to the lower extremity on the left?

MR. HARDICK: Objection to "could".

A Depending.

Q And have you seen that in your own practice?

A At time.

Q And, if you have a cord compression in the spine,

that's an injury; isn't it?

A I'm sorry.

Q If you have a cord compression in the spine,

that's an injury, correct, to the spine?

A Yes, a cord compression injury.

Q And an MRI would show that; correct?

A Yes, sir.

Q That's the proper tool to use to show that?

A The MRI would show that, but not in this case.

There was no cord compression.

Q According to you; right?

A No, according to the truth.

Q Not according to the radiologist?

A According to the truth, there was no cord

compression here.

Q Do you know what the radiologist found in this

A The radiologist -- a cord compression, when you

have a cord compression, you cannot walk.

Q Doctor —

MR. RAUSHER: Your Honor, move to strike as

nonresponsive.

MR. HARDICK: He asked him.

A You asked me the question. A cord compression —

Stop, doctor. Stop, please.

Next question.

Q Doctor, what I asked you was did the radiologist

find that in this case?

MR. HARDICK: Objection. Can he see the Joyce Fisher, C.S.R., Official Court Reporter

report. Show him the report. Let him read it. See if

there's a cord compression in this case.

THE COURT: Overruled, overruled.

A Show me the report, but I have not seen the

radiologist report myself.

Q The jury will have it.

A I'm sorry.

Q Mr. Hardick did not offer it to you, did he?

A He show me the film today.

MR. HARDICK: You want to show him the report

that says cord compression.

THE COURT: Stop talking, please. Don't do

that, stop.

Next question.

MR. HARDICK: Do I take it he's withdrawing

the question that there's a cord compression in this

case in the report?

THE COURT: Please stop.

MR. RAUSHER: Your Honor, would you please

admonish counsel. He's testifying to the jury.

THE COURT: Ask him to stop.

Just ask the next question. We can get

through this, please.

Q Is the history that you take from a patient

important? Joyce Fisher, C.S.R., Official Court Reporter

A Yes.

Q Did you take the history from Ms. Rutledge

yourself?

A Yes, sir.

Q Would you show me where it says that.

A In my report, sir.

Q No. It just simply says history of accident as

reported by the plaintiff.

Would you tell me where it says that you took the

history.

A I don't have that.

Q In fact, in your practice, don't you have someone

else take the history?

A The history is —

Q Yes or no, please, doctor?

A I took my history. The history is per, by the

patient.

Q Again, is it not your usual practice to have

someone else take the history from the patient?

A No, sir.

THE COURT: Sustained. He said he took the

history.

Mr. Hardick, would you put the pen down,

please. Joyce Fisher, C.S.R., Official Court Reporter

MR. HARDICK: Excuse me.

THE COURT: Put the pen down, please.

MR. HARDICK: I'm sorry.

Q Do you have a specific recollection of that in

this case, or are you telling us that in all of these cases,

you take the history?

A Asked and answered.

I do not re — I do — I do not -¬

THE COURT: Put your hand down from your

mouth and say it.

A I do not remember this case at all, sir.

Q So, if you don't remember this case, how do you

know you took the history?

A Because this is my practice. I took the history.

Usually a patient come to me, you tell me the history and I

ask you about the history.

I always, mainly in trauma cases, in all cases,

this is the job of the doctor to ask the patient, you know,

if you are having a problem, when did it happen? When did

you have this chest pain? When did you have this? How did

it happen? When did you fall? How did it happen?

THE COURT: Stop talking, doctor, please.

So, are you telling us that you don't recall

this case?

THE WITNESS: No, I don't. I have said that

many times.

THE COURT: Are you telling us this is your

usual practice?

THE WITNESS: Yes, ma'am.

THE COURT: All right. Stop talking.

THE WITNESS: Okay.

Q Back to the Montelbano transcript, December 6,

2000, doctor, I'll ask you if you remember under oath the

following questions and following answers:

THE COURT: Page and line. Question,

answer.

MR. RAUSHER: Page 39, starting at 17 for

continuity. I'm sorry. Starting at 13.

MR. HARDICK: When is this 2000, 2001?

Which -- when is it? I don't know which case you're

talking about.

MR. RAUSHER: I already said the Montelbano

transcript of December 6, 2000.

MR. HARDICK: 2 000, okay.

MR. RAUSHER: Starting at Line 13.

"QUESTION:" —

This is Page 39.

"QUESTION: Answer the question. Joyce Fisher, C.S.R., Official Court Reporter

"The 15 or 20 people you saw that day in your

Staten Island office" -¬

THE COURT: Please don't read fast. We have

a court reporter and it's difficult when you do that.

MR. RAUSHER: — "were they your patients?

"ANSWER: They were not mine.

"QUESTION: You saw 15 or 2 0 people that were

not your patients that day?

"ANSWER: Yes.

"QUESTION: Sir, did you actually even take a

medical history yourself?

"ANSWER: I reviewed the medical history.

"QUESTION: You didn't take it yourself, did

"ANSWER: No."

Q Now, in your practice, am I now correct that you

do not take the initial history from the patient?

Is that correct?

A No, sir.

In my practice, I — the history is a very

important part of the examination. The history — what

is -- what I was going to say? The history reviewed or

taken by me.

Q Now you're saying reviewed or taken by you?

Q I'm asking, did you take the history, not

reviewed, did you take it?

A The answer will be yes, sir.

MR. RAUSHER: Page 40, Line Nine:

"QUESTION: Go ahead.

"ANSWER: The way it works, the patient comes

in and you give the patient a paper to fill out.

"In this case, the patient is helped by one

of the assistants asking the questions. How did the

accident happen? That's where I get all the

information. How did the accident happen? Did she go

to the hospital? Did she get any treatment?

"We also take the full history. If the

patient had any medical problem, taking medication and

everything. This is a format that the patient has to

fill out.

"When the patient walks in, myself, I would

review all this briefly with them. Were you the

driver, were you wearing a seat belt and any other

problem I see. And I will review it with the patient.

And then after that, we start the examination."

Q Now, this, in fact, is your usual practice;

correct?

A Yes. In fact, if you let me, you know, say two

word. Joyce Fisher, C.S.R., Official Court Reporter

Q Doctor, I just asked you a simple question.

This -- yes or no — this is your usual practice

that I just read, your statement under oath; correct?

A This is not —

A -- simple question.

The question is that the patient will come in,

will fill out the form. But this is, as I said early, as I

said to you, I question the patient about how the accident

happened, and how did it happen and what the patient did

right after the accident. There is no contradiction between

the two.

Q Doctor, where is the piece of paper that was

filled out by my client?

A This is asked and answered, sir.

Q Well, I asked you about your handwritten notes

before. I'm now asking you about the questionnaire filled

out by my client at your examination.

Where is that?

A This is asked. I didn't know I have to bring this

questionnaire to court.

THE COURT: The question is where is it?

THE WITNESS: It's probably in my office in

the computer.

Q The handwritten notes by my client are in your

computer?

A No. The handwritten note by your client, if there

was. Well, you were asking me about, you know, a trivial

question, about, you know, the handwritten notes without —

leaving out the assistance of the thing.

The handwritten notes taken by me, by my office or

by the patient, I explain to you again, time and time again,

you keep going, keep going. They are all included in this

report.

Q But we can't verify if it's accurate or not, can

we, without the original? And I'm asking you again, do you

know where the original is, or was it also destroyed?

A And I say to you, sir, all of the information is

in this report. The patient was —

THE COURT: Stop talking. Stop talking,

please.

Q Is there anything that prevents you from keeping

one or two sheets of paper for each of these cases?

A No, sir.

Q Now, when you do a sensory exam in this type of

examination — you talked about a pin, correct, for

sensation? Is that correct?

A No, sir. I don't know any — if you're going to

ask me what I -- how I do it. You're talking about pin.

Pin for what? Joyce Fisher, C.S.R., Official Court Reporter

Q Doctor, did you use a pin in your sensory test?

A No, sir.

Q What did you use?

A A sensory exam —

Q What did you use?

A I'm telling you that, how it is done.

Q I didn't ask those questions.

What object, if any, did you use?

A You use light touch. We use — I use deep

pressure. And then there is a brush in the hammer, a brush

in the reflex hammer that we use to examine to check

sensation.

Q Did you use a paper clip?

A I'm sorry.

Q Did you use a paper clip?

A No, sir. There is — there is --

Q Do you ever use paper clips to do these exams?

A The paper clips have this application.

Q Doctor, it only takes a yes or no. Did you ever

use —

A There was no place for paper clips in the

examination, on the sensory examination, except when you

examine the major nerve for sensation in the hand.

Q So, you're saying it would not be appropriate to

use a paper clip? Joyce Fisher, C.S.R., Official Court Reporter

504 Paul - Defendant - Cross

A In this case.

Q In what case?

A In this particular case.

Q I' m not asking this particular case.

I said when you do a sensory exam as part of this

type of exam, do you use a paper clip as part of that test?

MR. RAUSHER: Montelbano under oath, December

6, 2000, Page 13, starting Line 18:

"QUESTION: Did you test for sensory deficits

on light touch and other matters with regard to the

upper extremities?

"ANSWER: Yes, sir.

"QUESTION: Can you tell us what you did and

what was the result.

"ANSWER: The light touch. We do usually

what we call two-point discrimination. Two-point

discrimination, it's a very objective test. You

explain to the patient what you're going to do and then

you ask the patient to close her eyes. And then you

put the hand one in another, that you can confuse her,

and you ask her to repeat fast.

we use the paper clips, and you touch the patient and

the patient has to say if it is one or two. She has to

A My answer is no use for paper clips.

"If it is two, you touch with two. Usually,

do that T-W-A fast, two, one, two, one, with her eyes

closed."

Q Doctor, I'll ask you again under oath, do you use

paper clips in doing your motor sensory examination of these

types of patients?

A This is, sir, confusion between orange and banana.

You're talking about one case and you want to put it on this

As I just said, the paper clip examination,

two-point discrimination, you do it when examining -- when

you examine the patient for carpal tunnel syndrome of the

hand. You use the -- you can you use the paper clip to

look for two-point discrimination.

But for examination of the lower extremity, there

is no place in the musculoskeletal or musculosensory exam

for paper clips.

The case you're talking about, I do not remember

this case, but you cannot take this case and make it this

Q So, when you said in that case under oath usually

you use paper clips, you only meant that one case?

A I mean this special case. If this patient was

having problem of, you know, carpal tunnel syndrome of the

upper extremitieis. I'm sure if you read all the case, if

you can understand it, if you read all the case, probably

you will see that there was a problem of carpal tunnel

syndrome.

Q Doctor, a two-point discrimination test, is that

part of a neurological sensory test done as part of an

orthopedic exam; yes or no?

A For, again, for people with carpal tunnel syndrome

for the upper extremity, not for the lower extremity. We

don't use two-point discrimination with paper clips for the

lower extremity.

Q Does a two-point discrimination test test motor

nerves or sensory nerves?

A Two-point discrimination test more than the -- the

Q Doctor, can you answer that question motor or

sensory?

A I'm going tell you answer to. Two-point

discrimination would be mostly sensory with a — a sensory

type of examination.

Q Now, the nerves themselves, these are the most

sensitive?

A Huh.

Q The nerves themselves, these are the most

sensitive of body structures; is that correct?

A I don't understand what you're saying.

Q Nerves are body structures; correct?

A Nerves are body structures.

Q And they are very, very —

A Hold on a second. Nerves are body structures. In

what way?

THE COURT: No, you have to answer. You

can't ask a question.

THE WITNESS: I don't know. I don't know

THE COURT: If you don't understand, just say

I don't understand it.

THE WITNESS: I don't know what the sentence

means.

Q Nerves are part of all of our bodies; correct?

A Yes.

Q And they are very, very sensitive; correct?

A Yes.

Q Much more sensitive than muscle, other soft

tissue; correct?

A Yes.

Q And if a patient -¬

THE COURT: Speak up, please. Don't whisper.

Q If the patient reports numbness and tingling,

those are sensory symptoms; correct?

Q Sensory symptoms are typically nerve related;

correct?

A Yes.

Q Compression on a nerve; yes?

A I don't understand. You know —

Q What effect does compression on a nerve have for a

patient?

A Compression on a nerve, what kind of compression?

Q Are you unfamiliar with the term "compression on a

nerve"?

A Yes, sir. I am familiar.

Q You are familiar?

A Yes.

Q What are typical symptoms that a patient has when

there is compression on a nerve?

THE COURT: You can answer, if you can.

Can you answer that question?

THE WITNESS: No, I cannot answer it.

Q You don't know that?

A No, I don't know. The question is not specific.

MR. RAUSHER: Montelbano, December 6, 2000

under oath, Page 15, Line Five.

"Question:" — Joyce Fisher, C.S.R., Official Court Reporter

THE COURT: Page? I'm sorry.

MR. RAUSHER: Page 15, Line Five.

"QUESTION: You use the word 'compression'.

What do you mean by compression? Compression on what?

"ANSWER: The nerves. They are the most

sensitive element. They are very, very sensitive, more

sensitive than the muscle, more sensitive than the

ligaments, more sensitive than any other areas.

"When there is nerve compression, that

translates itself proximally or distally by some kind

of symptoms.

"For example, if there is a nerve compression

in the neck, what's going to happen is that the patient

is going to have also weakness in the upper extremity.

Also, sensation of a tingling sensation. Also,

sensation of numbness in some area that one can check.

"Usually, you have sensory problems first,

numbness, tingling, sensation, when you sleep on one

area or the other area. That you should be able to

check that objectively."

Q I ask again, doctor, compression on a nerve, is it

likely to cause symptoms such as numbness and tingling for

the patient?

A Compression on a nerve will cause more than that.

And then, also, I don't like this thing that you take one Joyce Fisher, C.S.R., Official Court Reporter

case, Montelbano case, I told you I don't remember, and you

are asking a portion about this specific case. You

translate this case to this particular case.

I want to know if you want to ask me question

about this case, if you want to show me the EMG about this

case, but don't take a case 2000, 2000 —

THE COURT: We understand that, doctor, but

can you answer the question, please.

MR. RAUSHER: Move to strike as not

nonresponsive, your Honor.

A Answer your question.

Q I'm not trying to compare an actual patient from

another case. This is your testimony under oath that I'm

comparing.

MR. HARDICK: Objection to his statement

"testimony under oath".

Read the question.

Just ask the question please.

Q Doctor, when Ms. Rutledge came to you -¬

A Right.

Q -- you said she made complaints; correct?

A Yes, sir.

Q And, those complaints, when you were telling, you

said neck, back, left foot, etcetera.

I'm going to ask you not to say etcetera, but to

tell the jurors specifically each and everyone of her

complaints. Would you tell us from your report if you don't

have an independent recollection.

A She came in complaining of pain in the neck, pain

in the thoracic spine, pain in the lower back, pain in the

left shoulder, pain in the left hip, pain in the left leg,

pain in the left knee and the left ankle, pain in the left

foot, numbness in the neck, numbness in the feet, tingling

in the neck and feet, and radiation pain in the neck and

Q You left out a line, an entire line, doctor.

Doesn't it also say left leg? I'm sorry. Left shoulder,

left arm, left elbow, left wrist, left hand, left fingers?

Then it goes to left hip?

A I don't see left fingers. You know, I see left

arm, left hip, left leg, left knee, left ankle, left foot,

left toe. I don't see left hand. Left toe, numbness in the

neck, in the feet.

Q So, the copy of the report you have doesn't say

left hand, left fingers, doesn't say that?

A I don't see the left hand, left — I don't see the

left hand.

MR. RAUSHER: Your Honor, may I have this

shown to the witness.

MR. HARDICK: No objection.

Q I'll ask you to look at the final paragraph on

that first page, Line Two and Line Three.

Forgive any underlining I did. I'm not using that

for your purpose.

THE COURT: Speak for the record, please.

Don't just talk to yourself.

What's the question, please.

Q Are your reports -¬

THE COURT: Just a moment.

Doctor, please listen to the question.

Q Is the report that you brought different than the

one I've just shown you?

A Yep. I have that.

Q I'm sorry.

A I have that.

You are reading from the first page. I was

reading from the second page.

Present complaint as stated by the plaintiff.

Now, you were reading from the history of the

accident.

Q May I have the page back.

Then let's start from the first page, doctor.

A Yeah. Joyce Fisher, C.S.R., Official Court Reporter

Q Sorry to repeat, but this, in fact, talks about

left arm, left elbow, left wrist, left hand, left fingers.

Is that correct?

A Yes, sir.

Q And that she complained of tingling, numbness and

radiating pain; is that correct?

A Yes, sir.

Q Those are the same symptoms that we talked about

of a radiculopathy; correct? Of a nerve compression;

correct?

"A No, sir.

Q How are they different?

A That is — the radiculopathy is something that the

doctor can verify. The complaint of the patient is the

subjective thing. The patient will tell you that he has

pain, he has everything.

When we're talking about radiculopathy,

radiculopathy, by examination you can verify if there is

radiculopathy or not. It's not something that you want to

hear the patient telling you, doctor, I have radiculopathy.

The radiculopathy is a diagnosis. The doctor going to pose

this diagnosis after he examine the patient.

Q Doctor, what are the symptoms of a radiculopathy?

A The symptoms can be multiple. Pain, weakness,

numbness. Joyce Fisher, C.S.R., Official Court Reporter

Q Tingling?

A Tingling, difficulty walking, difficulty standing.

The symptoms can be --

Q Doctor, herniated disk, can that be a permanent

condition?

Herniated in the general? There are all

kinds of herniated disks.

Q Is a herniated disk a permanent condition?

A It can be a permanent condition.

Q You reported that she missed three months from

work; is that correct?

A Yes, sir.

Q And it was only three months from the date of

incident until your exam; right?

So, when you say she missed three months, you

really mean she missed all the way up until your exam;

correct?

A That is what my that is what the report says,

sir. That's what is there.

Q Did you report her height and weight?

A Yes, sir.

Q What was that?

A 4 ' 11" . Joyce Fisher, C.S.R., Official Court Reporter

Q Weight?

A 115.

Q Good shape?

A I'm sorry.

Q Good shape?

A What do you mean? I don't have the shape here.

Q For her age, height and weight, is that a good

shape?

A Yeah.

Q Did you know that there were x-rays in this case?

A No, sir, no need for it.

Q Are x-rays objective?

A No need for it.

Q And if x-rays showed straightening -¬

Q -- would you question the results of those as

THE COURT: Objection is sustained, please.

Q Doctor, have you ever examined a patient, found

them to have a loss of range of use to a part of their body

of 25 percent and said that that's normal, they're fine?

A Again, this is a general question.

Q Yes, it is. Can you answer yes or no.

A Examining a patient depend on the age of the

patient. In a --Joyce Fisher, C.S.R., Official Court Reporter

THE COURT: Can you answer yes or no.

A -- twenty-two years old patient, the answer is no.

Q Have you ever testified that we have extra range

of motion that we don't need?

A That's correct.

Q Excuse me.

A Yes, that's correct. I said that is a correct

statement what you just said.

Q That our creator has endowed us with extra?

Q Are you saying we have range of motion based on

millions of years of evolution that we don't need, it's

excess?

MR. HARDICK: Objection, same question.

THE COURT: We have an answer anyway. He

said it before.

Q Did you ever examine a fireman, find a 25-percent

loss of use of his ankle and say that he could do his normal

THE COURT: Sustained.

Q Do you recall testifying in a case of Timothy

McNamara versus Bruce Hittner, January 10, 2002, in the

Supreme Court of Staten Island before Judge Christopher Joyce Fisher, C.S.R., Official Court Reporter

Mega. Do you recall that?

Q Have you ever testified for the Transit Authority?

A Yes.

Q How many times?

A Very seldom.

Q I'm sorry.

A Very seldom.

Q Well, you told us you testified only a few times

altogether and that turned out to be up to eight to ten

times a year.

THE COURT: You're arguing with the witness.

Ask a question, please.

Q So, what is seldom?

A That is -- I just told you I testified this year

for one or two time, for one or two time, three time

maximum. You know, this eight to ten time, you don't

normally -- I don't want you to put it like this.

Q Doctor, how many times have you testified for the

Transit Authority?

A I said very seldom. I do not remember. But if

you ask me for this year, I will tell that this is the first

time I'm testifying for them. For the year past, I do not

remember exactly.

If you ask me for this year, I'll tell you

straight this is the first time I'm testifying for them.

Have I testified for them before? Yes. But I do

not have a recollection of them.

Q Well, with your lack of recollection, in fact,

didn't you testify for Mr. Hardick before?

A Yes.

Q Other than testifying, do you review cases over

the years for Transit?

Q No. March 5, 2004, the case of Saundra Crane.

Did you make a report out after an exam at NYC

Transit, 130 Livingston Street, about the exam you did on

their behalf? Any recollection of that?

A 2004?

Q The report is March 5, 2004.

A Yes. I've examined patients for Transit, but I

don't remember the cases.

Q Didn't you just testify under oath that you've

never examined for the Transit Authority?

MR. HARDICK: Objection, Judge. That was not

the question.

A No, I never said that. That was a lie.

MR. HARDICK: Your Honor, the prior question

was do you ever review cases for the Transit Authority,

not do you ever do exams for them.

MR. RAUSHER: And what's the difference?

MR. HARDICK: I don't know what reviewing

cases is.

THE COURT: All right, gentlemen, please.

The hour is late.

Q In that case of 12-19-03, and the report and exam

March 5, 2004, I mean, that's within weeks of Ms. Rutledge;

right?

A You have the date.

Q Well, apparently it was November 23. This is

December 19. Her exam, February 12 of '04. This one

March 5 of '04.

Passenger on a bus violently stopped short.

Are you saying you don't remember this?

A How would I remember unless I have your memory.

THE COURT: Say yes or no, please. Don't

talk other than that.

A Unless I have your memory.

Q So, how many times do you think you did exams for

the Transit Authority over the years?

A I would not know, sir.

Q Could be one, could be a hundred, could be more?

A You going to ask me for each year that I remember.

Very well. Joyce Fisher, C.S.R., Official Court Reporter

2000, I do not remember exactly what happened in

If you ask me how many exam I did for Transit in

2010, I would give you an answer.

2009, I would give you an answer more or less that

would be approximate.

2008, the answer would be less, less precise.

2007, less precise.

Q Okay. Well, you've talked about your active

private practice. When is the last time you performed a

spine surgery?

A Four years ago.

Q I can't hear you.

A Four years ago.

Q And the time before that?

A Of course.

Q Of course what?

A Yes.

Q How long before that?

A How long before that?

Q Yes. The last time you performed spine surgery

was four years ago.

A About. I said about four years ago.

Q And the time before that, when is the most recent

one before that one? Joyce Fisher, C.S.R., Official Court Reporter

A I would not recall, sir.

Q I'm sorry.

A I have no recollection.

Q Isn't it a fact that you are specialized to

practice in the upper extremities?

A I am.

Q Didn't your letterhead even used to say hand

surgery?

A My letterhead said orthopedic surgery plus, plus

bones, upper extremity fellowship.

As I explain, I did the fellowship at the Hospital

for Special Surgery and Cornell.

I am a general orthopedic surgeon, plus a bones

and upper extremity specialist.

Q When you do range of motion studies, do you do

them by eye?

THE COURT: Do what?

Q Do you do them by eye, visually?

A We use what we call a goniometer.

Q I'm sorry.

A I use what we call a goniometer.

Q Are you talking about a goniometer?

A Yes.

Q Did you use one with Ms. Rutledge?

A Yes, sir. Joyce Fisher, C.S.R., Official Court Reporter

Q How do you know that?

A Because that is my normal practice.

Q Is it anywhere in your records?

A No, we don't put that down.

Q Have you ever put that in your records?

A Not really. I don't remember putting that down.

Q Isn't it a fact that you did not use a goniometer

or any other such device during your exam with Ms. Rutledge?

A Now you're talking for me. I told you it is my

common practice, I use a goniometer to review the range of

motion.

On this lady, you know, I ask you, if you talking

about her, specifically, I do not remember, but it is my

common practice to use a goniometer to measure this thing.

But is it not the fact that you are saying, you know, this

is doesn't make too much sense to me.

Q Have you ever performed a defense examination or

other type of examination accidentally on one of your own

patients?

A What is that? Can you repeat again.

Q Yes. Have you ever performed a defense

examination?

A Offensive?

THE COURT: Wait for the question, please,

doctor. Joyce Fisher, C.S.R., Official Court Reporter

Paul - Defendant - Redirect

Q Have you ever performed an examination on behalf

of a defendant or their representatives accidentally on one

of your own patients?

THE COURT: Do you understand the question?

THE WITNESS: I understand the question.

THE COURT: Yes or no.

A I don't know about that.

Q Did you ever say that one of your own patients was

fine after recommending surgery in your own practice?

A I don't know about that, sir.

Q You don't recall that?

A I don't know about this, you know. You are

telling me. You are -- I'm learning something new.

MR. RAUSHER: Nothing further at this time.

Thank you, Judge.

REDIRECT EXAMINATION

BY MR. HARDICK:

Q Loss of lordoses on an x-ray, on an MRI, is that

clinically significant?

A Okay. One has — if you see the lordoses, one has

to underline. But the loss of lordoses by itself is not a

significant finding because that will depend on the position

of the patient.

If the patient go for the x-ray, instead of

putting his head like this, putting his head straight, then

that will modify the exam.

But normally in an examination is all the finding

you put together. The spasm, the tenderness, the decreased

muscle strength, all this thing that will — didn't exactly

make a diagnosis. But the lordoses in itself, I'm repeating

again, is not a big thing because it can be affected by the

position of the patient.

Q Now, doctor, you said in this case that the

plaintiff had a strain in the neck, a sprain in the back, a

contusion and everything was resolved.

Did you see any evidence that the plaintiff had

any of these injuries?

A No. In my examination, there was no evidence of

anything at all. But the doctor, when examining the

patient, you're taking a history. If I tell you -- if the

patient tell me that, okay, ten days ago, you know, I have,

you know, blood coming from my nose, you know, you take it

down, and you see stitches, past history of nose bleeding,

but you don't see it.

Like in this case, the patient tell me he has

pain, he has all these things, but my examination, I didn't

find any of this, of all these things she was talking about.

That's why the reason I based on the history, I said based

on the history I obtained from the patient, I put that she

has resolved sprain of this area she was complaining of.

Q Did you have any -- who told you she was out of

work for three months?

A She told me she was out of work for three months,

and then I put it down. Whatever she tell me, you know, I

put it down.

MR. HARDICK: Thank you, doctor.

I have no further questions.

MR. RAUSHER: Just a few and I'm done,

limited to cross.

THE COURT: I know. I have to find out what

it is .

Step up, please. You can't keep going on and

MR. RAUSHER: Respectfully except.

THE COURT: Thank you very much, doctor.

You may step down, please.

You're finished.

(Witness excused.)

THE COURT: We're going to suspend at this

time. I must admonish you not to discuss this matter

among yourselves or with anyone else until it's turned

over to you for your deliberations.

We'll see you tomorrow. I need each and

everyone of you tomorrow. 10 o'clock, please. We

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