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Deposition 3 - deposition of doctor in products liability case

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THE VIDEOGRAPHER: We are on the record and at the beginning of Tape No. 1. Seated before you is Paul Nausieda, M.D., who will be testifying in the matter of Steve A. Boren, plaintiff, versus A. O. Smith Corporation, et al., defendants.

This case is to be heard in the Circuit Court of the Third Judicial District in the County of Madison, Illinois. Case number is 016786 (sic).

We are at Sinai Samaritan Medical Center in Milwaukee, Wisconsin. Today is December 22nd, 2004. The time, as indicated on the video screen, is 1:44 p.m.

This video deposition has been requested by Attorney Patrick Gloor of Cassiday, Schade & Gloor in Chicago.

I am Owen May, a video technician appearing on behalf of Ryker & Lyle Legal Video Services in Pewaukee, Wisconsin.

The attorneys will now please state their names for the record.

MR. GLOOR: My name is Pat Gloor on behalf of the defendants. You guys tell him who you are.

MR. KOPRIVA: Jim Kopriva for defendants.

MR. IVANSEK: Don Ivansek on behalf of defendants.

MR. McCOY: Bob McCoy on behalf of the plaintiff.

THE VIDEOGRAPHER: Thank you. The court is Julie Poenitsch of Gramann Reporting. The reporter will swear in the witness.

PAUL A. NAUSIEDA, M.D., called as a witness herein by the Defendants, after having been first duly sworn, was examined and testified as follows:

THE VIDEOGRAPHER: Please proceed.



Q Hello, Doctor.

A Good morning. Good afternoon, actually.

Q It is afternoon. Just a few things before I get into it. You've never seen Mr. Boren, have you?

A Not that I'm aware of, no.

MR. GLOOR: Okay. Let me just mark -- This is the notice of deposition, Bob. Let me mark that, if you could, as Exhibit No. 1. I'm going to show that to the -- Mr. McCoy.

MR. McCOY: He has brought his -- his file.

MR. GLOOR: That's fine. We'll make an exhibit, that's all.

MR. McCOY: But he doesn't have much on Boren as a file.

(Exhibit 1 marked for identification.)


Q Let me show you what's been marked as Exhibit No. 1. It's got some of our printing on it, which is unrelated. It's in whatever color that is. Turquoise? In any case, take a look, if you would, at that. And my question for you, Doctor, is have you seen that notice without the writing on the first page; have you seen that notice before?

MR. McCOY: I don't think he's -- I don't think I sent this to him. I just asked him to bring the records.

THE WITNESS: I'm sure I didn't because I didn't know this was videotaped today.


Q Okay. If you go down into that Exhibit No. 1, there's a listing -- there's a rider about things you're supposed to bring. Let me just -- If you'd turn to that. It's the next page, I think. That's fine.

MR. McCOY: For the record, I just got this notice about Friday or something, at the earliest time.

MR. GLOOR: Whatever it is. I mean, that's --

Q I take it you haven't seen any of Exhibit No. 1, including the rider; is that correct?

A That's correct.

Q All right. You can put that aside. Have you brought certain things with you to this deposition, nevertheless?

A Well, there was a file marked Boren, and I brought what was in that file.

MR. GLOOR: Bob, has that stuff been given to us before so that we don't have to go through that, or is that something new?

MR McCOY: Right, this would be part of his previous disclosures of materials the firm provided to him.


Q All I would ask is this, Doctor, is because it's a small stack, if it's possible that you could, after we're done here, have it copied and have it attached to the deposition, that would be helpful. Is that okay with both of you guys?

A Sure. I mean, they're all exhibit numbers. They're already -- Everything's got a current court plaintiff's exhibit.

MR. GLOOR: Was that what you sent to us, Bob?

MR. McCOY: Right.


Q Can you give me the whole thing? Maybe I can do this more easily, Doctor.

A Sure.

Q Here, let me see. I see a letter dated November 3rd, 2004, from Bob to -- Mr. McCoy to Dr. Nausieda, and it's referring to certain plaintiff exhibit numbers, and if this is what we've seen before, then there's no need to copy this, Doctor. Just make sure we have it all, but I think that probably is it.

A Okay.

Q Let me just cover something. Last time you were deposed in Boren --

MR. McCOY: And for the record, that's material that we've sent him, I believe, since his last Boren deposition.

MR. GLOOR: Right. That was January 13th, ‘03, if I recall.

MR. McCOY: For Boren.

MR. GLOOR: That's right.

MR. McCOY: And you've been sent other material probably in connection with Elam. So it's a whole continuum of different cases is what his knowledge is, but specifically that was the update for Boren.

MR. GLOOR: That's fine.

MR. McCOY: Since his last Boren deposition.


Q Do you recall testifying in Boren specifically, Doctor, on January 13th, ‘03?

A Specifically regarding -- I mean, Boren does not conjure up any specific testimony. I mean, there's such -- there's been a large number of them.

Q I understand. Have you reviewed the prior deposition before coming here today?

A No.

Q Let me just sort of bring me up to -- bring -- have you bring me up to date on -- on some items. Litigation work. Do you know how many cases you've been retained in up till now by lawyers who are representing people who are claiming to have neurological problems because of exposure to welding fumes?

MR. McCOY: Object to foundation. When you say retained, you mean that he's been paid to be an expert witness in that case; is that what you're talking about?

MR. GLOOR: I'll break it into two.

MR. McCOY: A file case? I mean, it's a little confusing. Go ahead.

MR. GLOOR: I'll break it into different stages, if that's -- that's required.

MR. McCOY: And that's kind of a lawyer's term, the word “retained,” so go ahead, though.


Q All right. If any of my questions are ever unclear and Bob doesn't object, you tell me if it's unclear to you, and I'll do the best I can to clarify.

What I'm after is this. As of this moment in time, are you able to give me an exact number or an estimate on how many cases where you have been, in fact, retained by a lawyer to represent someone who is claiming neurological problems, neurological injury, because of exposure to welding fumes?

MR. McCOY: Same objection. I mean, that -- your question used the word “represent.” The doctor's not representing anybody. He can answer.

THE WITNESS: Yeah, I guess I'm not quite clear myself.


Q Ask me a question, I'll clarify.

A Well, I mean, I've seen a large number of individuals who have what appears to be parkinsonism related to occupational exposure to manganese.

Q How many -- how many do you think you've seen?

A With that diagnosis? 2,300, 2,400.

Q Have you seen --

MR. McCOY: I'll also object because the doctor's explanation was just cut off, but go ahead.


Q I never mean to cut off anyone. If you think I'm cutting you off, Doctor, tell me, and I will stop. That's one of my pet peeves when someone else is asking a question of a witness when I'm representing the witness. So that is never my intent. I sometimes talk too fast, and that is just who I am, and tell me to slow down.

A It's harder on the reporter than me.

MR. McCOY: Too many years of manganese cases. Know where everybody's going.


Q You just indicated you've examined something over 2,000 people who, I think you said, have some form of parkinsonism. Do I recall that correctly?

A Right. These are people with parkinsonism who have a significant occupational welding history who have legal claims filed, as I understand it. I'm not privy to that.

Q Have you examined more than these 2,000?

A Oh, yes.

Q In terms of people who are claiming injury from -- neurological injury from welding exposure.

MR. McCOY: Object to the, again, the form and foundation of that question, because I don't know if he has the understanding of whether they're claiming injury from, but subject to all of that, he can answer.

THE WITNESS: I mean, we know I examine patients every day I'm in the office. I mean, this is just one other etiologic issue in parkinsonism Whether I was paid by a lawyer or paid by Medicare or paid by a third-party insurance company, is that the issue that's --


Q No, no, let me go back. Something over 2,000 you've examined, people who have occupational exposure, welding exposure, where there has been a conclusion by you that they have some form of parkinsonism, correct?

A Or manganese poisoning, whatever you choose --

Q Something.

A -- to call it.

Q All right. And my question was, have you examined, in addition to those 2,000, other people outside of your practice here in Wisconsin, where you have been sent people from a lawyer or people who are making a claim where there's a lawyer involved, people in addition to the 2,000? Does that question make any sense?

MR. McCOY: Object again because --

MR. GLOOR: We're going to be here till six.

MR. McCOY: I know.

MR. GLOOR: You can have a standing objection to foundation. You're driving me crazy.

MR. McCOY: Let me help you, okay? Lawyers do screenings. That doesn't mean people are claiming injury from -- from these welding fumes. We do screenings. That's what -- that's what we do. So he's examined people at screenings.

MR. GLOOR: I don't think lawyers do the screenings, but let's ignore that for the moment. I think it's a medical issue.

MR. McCOY: We set up -- we set up screenings, that's what we do.

MR. GLOOR: Let's go back and see if I can get anywhere on this.

MR. McCOY: See, I'm giving you a term that I think fits. I'll not object to that term.

He's examined people at screenings for lawyers.


Q Okay. The 2,000 people we talked about a moment ago, are those people who you examined when you were doing screenings for lawyers?

A That's correct.

Q Have you looked at any people in addition to that 2,000 on behalf of lawyers where the claim is being made that a welding exposure had caused neurological problems?

A Not specifically from lawyers. We have a number of people who now are coming here for opinions who sought us out through the Internet.

Q And those people are people who have lawyers representing them?

A In some cases they do; in some cases they don't. There doesn't seem to be any clear pattern to that.

A lot of this is being generated apparently by local unions, and I have no knowledge of how that's being done, nor where.

Q In the last year of-- how about 2004, how many such people have come into your clinic or practice here in Wisconsin?

A Probably somewhere between 50 to a hundred, one or two a week.

Q If you had to go and -- I noticed on your wall that you have a database on 5,000 patients, which is a good thing.

A Um-hum.

Q If someone was going to look at that database with a computer, could they pick out which ones came here claiming welding exposure had caused them some sort of neurological disorder?

A Probably not going into the billing database because many of those patients' initial diagnosis was Parkinson's disease. If you went into our welding database and the questionnaires about specific welding exposure, you would probably be able to identify all those people.

Q How many --

MR. McCOY: Let me again object here because there was a change in some question. We started out with people having come because of their welding exposures. Then you switched to a question they came making claims about their welding exposures. Subject to that, he can continue to answer.


Q The welding database that you have, when did you start that?

A 1991, I think.

Q How many people are in the welding database, roughly?

A Probably about 150, 160 now.

Q How does someone get included in the welding database?

A Well, we had question -- we have questionnaires in our newsletter probably once or twice a year asking if anyone with Parkinson's has a history of occupational exposure to manganese, manganese-containing compounds, or welding materials.

And in addition to that, in the clinic, when we take a history of the present illness, we always ask about the patient's occupation, what kind of setting those people work in, and whether there's any potential for exposure to a variety of neurotoxic compounds.

Q Is there a form that you have that people complete if they fit within this category?

A Yes.

Q And I don't know if we've had that form before. Is it a blank form that someone fills out when they come here, I take it?

A Well, there's an intake form that they all fill out, and one of the questions in there is is there a history of welding exposure, which is kind of the first pass question.

There is then a separate questionnaire for specific welding history, and that's -- we don't normally give that out unless there's some reason to suspect that's an issue. You have those. I mean, Mr. Bell has collected them previously. We certainly have copies of them available.

Q All right.

MR. McCOY: We can get you one probably at a break.


MR. McCOY: We can do that if we need to.



Q If I -- if I needed the whole database for some reason, is that something which is available as well, or not?

A Not yet. I mean, that database is -- One is there's a whole HIPAA issue with it, which no one's ever resolved for me, and the completed database for the entire clinic is still in the process of being generated. That's that whole separate wing down there is all people doing data entry.

MR. McCOY: And the Illinois law allows a doctor to testify about patients in his practice. I mean, that's just the way the law is in Illinois.


Q If there was on this particular form a -- Well, withdraw that.

Is there on this form a reference to whether or not someone is represented by an attorney when he or she comes here and fits into the database on welders?

A No. That's -- The patient's legal business is not one of our scientific concerns.

Q In the last year, calendar 2004, of the people that came in and who fit within this welding database, have you sent any of them to attorneys for the purpose of representation?

MR. McCOY: Let me object to the words “sent to attorneys.” I think you --

THE WITNESS: Some people have inquired as to whether there's a medical-legal issue involved, and we've explained to them that there -- there is an issue of liability that's been raised, and we've given them the names of a variety of attorneys who are involved in those cases. Whether they contacted them or not is not -- not my issue.


Q And you wouldn't know if they had or not, I take it.

A No.

Q In terms of the attorneys whose name you give them, I take it Mr. McCoy is one of them?

A Mr. McCoy is one of them.

Q Who else?

A Barrett, Don Barrett, down in Mississippi has been another. And then here in the city, James Murphy of -- they keep changing the name of their firm -- I think it's Murphy & Prachthauser, has been involved to some degree with these cases.

Q Any idea, again in calendar ‘04, how many cases -- how many -- how many occasions you've given a person Mr. McCoy's name, for instance?

MR. McCOY: Let me object to the term “cases.” Patients?


Q I'll rephrase the question. We'll get here; I just am sorry that this is so bumpy.

In calendar ‘04, on how many occasions have you given a patient Mr. McCoy's name or his firm's name?

A I don't know. It's a hard -- it's a hard number to come up with. I would guess probably 25, somewhere in that range.

Q How about Mr. Barrett?

A Probably 10, 15.

Q How about -- Was it Mr. Murphy? I forget.

A Probably another 20.

Q In terms of the medical-legal work that you're doing, is that taking an increasing amount of your time, in calendar ‘04, for instance?

A It's taken, yes, it's taken quite a bit of time out of our standard office practice, simply because of the timing of these -- of these medical evaluations, which used to be on the weekends, but now we're on weekdays, so it's taken a bigger toll out of my schedule.

Q Calendar ‘04, are you able to give me any kind of percent, rough percent, of how much of your time is spent on medical-legal things?

A I'd be guessing. I think -- It's probably fair to say I think I've probably put in about probably 50 days examining people, which pulls probably 65 days out of my work schedule. And our work schedule here is basically, let's see, 12 days on, two days off.

Q Do the math. I've got the numerator, it's 65. What's the denominator for calendar ‘04 if 65 is the numerator?

A Well, there's minus 52 days I'm not on call and probably three weeks that I'm on vacation. I'm not that good at math, otherwise I'd be a physicist.

Q What do you think the denominator is? If you take 365 days, you take off 52, we're down to three hundred and --

A Ten.

Q -- ten.

A A fifth.

Q Okay.

A Twenty percent.

Q So twenty percent of your time is spent in medical-legal. Before, when you talked to Peter Bell, when he took your deposition, you were charging $10,000 a day. Has that changed?

A No, same fee.

Q So if -- I'll just do the math again, tell me if I'm wrong, but if it's 65 days times 10,000 -- again, if this is wrong, you got to tell me -- that would be, for calendar ‘04, $650,000, roughly, from medical-legal stuff?

A Right. And that's corporate billing, that's not me billing it.

Q I understand. That's -- that's the amount that was being generated, roughly.

A That sounds a little high compared to what my accountants told me, but, you know, I don't breathe down my accountants' backs either. Probably half a million dollars is about a reasonable amount, I think. It may be a little higher this year.

Q And my recollection -- again, correct me if I'm wrong -- I thought that there was additional charges for nurses when they would help you with your work; is that correct?

A Right. When we have a nurse clinician down there doing part of the exams or doing computer assessments, she's billed for at a rate of 2,000 a day.

Q If she were up here working, how much would she get a day?

A Well, if she were up here working, I don't know what the number would be. She makes 1200 a week.

Q Okay.

A Working in the office. And she's compensated for the time she's down there.

Q At a higher rate of pay then?

A Well, for the time that she's down there, which we consider hazardous duty pay, she gets 1250 of each 2,000 billed is paid directly to her.

Q Since January 13th, ‘03, which is the date of your last Boren deposition, have you done any research, any -- any research of any kind in the question of the connection, if any, between exposure to welding fumes and central nervous system problems?

A Have I done any research?

Q Yes, sir.

A Well, you know, we have the ongoing analysis of the data that we have been collecting continuously.

Q Is that the Gulf Coast issue, Gulf Coast information?

A Well, it's, yeah, it's the data that's been submitted for publication, which has now been accepted with minor editorial changes, which have been made and then resubmitted, I'm waiting to hear for the final approval, is done. That's the Gulf -- That's all related to the Gulf Coast patient population.

Subsequently, we have patient data from a fairly -- much wider geographic area, which we have not yet been able to fully analyze, but will be analyzed for future publication once we figure out the best way to handle the data.

We have additional data. I mean, we've been very interested in postmortem data acquisition, so we've had a number of expenditures related to obtaining central nervous system pathology of having autopsies done at our expense.

We now have autopsy results in one patient with a chronic welding exposure and have pathological diagnoses on the brain tissue and have two other cases awaiting pathologic study at the moment.

Q Let me just take those one at a time so I can cover it. The post Gulf Coast data -- Withdraw that.

You had indicated that there is data of a broader type, or maybe a broader geographical area, after Gulf Coast. Could you give me more information about that? What do you mean by that?

A Well, all the -- all the studies initially involved shipyard workers and refinery workers right along the Texas, Louisiana, Mississippi, Alabama.

Q Was that the original Gulf Coast --

A Right.

Q -- material that you talked about, where you saw 2,000 or so people?

A Right. And that's the data that was subject to analysis in that first publication.

MR. McCOY: Okay. Let me object to the statement as to what your prior testimony was. I mean, I think there's a general understanding, but I'm just protecting the record on exactly what was said might be different from what you said. Go ahead, though.


Q I forget the question, frankly. All right. Let me try to reconstruct it.

A Okay.

Q You indicated that your -- your article was submitted and apparently accepted with conditions for publication involved those workers where you saw 2,000 or so, whatever the number is you testified to, correct?

A Right.

Q And then since that time, you've seen an additional body of people exposed to welding fumes; is that correct?

A Right. Each -- each of these days that I'm out of the office, we generally will see between 50 and 60 individuals and examine them.

Q So they're beyond the Gulf Coast, and there's some other geographical area; is that what I understand, Doctor?

A Well, you know, it's the patient selection now has -- has occurred in a variety of cities throughout the United States.

Q Name the cities that are involved.

A Well, the sites where the -- where the screenings were done don't necessarily -- I mean, the welders frequently come from a larger area, but we've been, you know, from Newport News, Virginia, to Seattle, Portland, Oakland, Los Angeles, and then a number of cities in the Midwest, Kansas City, St. Louis, Fort Smith, Little Rock, Oklahoma City, Tulsa, Dallas, Louisville, Nashville, Birmingham, and then a variety of cities in Florida on the Gulf, Tampa, Pensacola. That's probably a pretty comprehensive list.

Q Post Gulf Coast -- again, we just talked about that -- do you have any feel for how many people that have been involved in these various cities you talked about, how many people we're talking about, whether you saw them or not?

A Well, I saw everybody at each one of these sites.

Q In that case, tell me the numbers, if you could, not by city, but grossly what the numbers are.

A Well, if you take an average of, say, 55 people per site, and if that 65 days is correct -- Part of that -- That's probably -- That's not accurate because a number of those are travel days that were lost. Say 50 days. So 50 times 55. 2,750 patients, is that right?

Q I think your math was right, but I'm not good at math either, but I think -- It's 50 times 55.

A Right.

Q And on those, whatever the number is, 2,750, or whatever that number is --

A Yes.

Q -- I'm not holding you to that precise number -- are there records being kept somewhere about those individuals?

A Right. Complete neurological examinations are available. We fill out a form. The law firms then are -- copy those forms and send them back to us. There's always a latency in obtaining those records, though.

Q Do you then have a copy of whatever forms is involved here in Wisconsin, out of this 2,750?

A The ones that we've had returned, sure.

Q And if they haven't been returned, they're in the process of being returned, I take it?

A That's the assumption. We don't have a contractual agreement that binds anybody to return them, but that's the agreement we have with these firms.

Q Are other doctors besides yourself looking at these 2,750 people?

A Nobody is concomitantly collecting a database like ours, no, not that I'm aware of.

Q Now, is there any doctor physician helping you in looking at these 2,750 people?

A Well, we've had other physicians who we've talked about about various issues regarding the analysis of that data. No one at the moment has access to that data.

Q So for the generating of the data, the looking at the person and filling out the form, that's, I take it, been you exclusively.

A Correct.

Q And if it was 50 days, I think you said, and it was roughly 55 people a day; is that how I understand it?

A That's what it's been running generally.

Q How much time do you spend with each person?

A Depends on the case. I mean, some patients might take 40 minutes going through extensive medical records, going through the exam. Some patients have never seen a doctor and are on no medication. The history is much cleaner then, and one merely needs to look at the examination and go through a history of the occupational exposure. It might take only ten minutes, seven minutes.

Q But there are 55 people in a day?

A Right, but there are two people working concomitantly going through the histories, and then the -- and going through the medications, so the examinations don't take that long.

Q But do you see each one?

A Yes.

Q All right. And the people who are helping you are the nurses from your office?

A Right, research nurse clinician.

Q And who are those, just so I have --

A Stacey Reimer is the one who is the nurse who's been involved in all these cases. More recently now, one of our associates, Dr. Katherine Widnell, who's an M.D.-Ph.D., has been down to do some of the patient evaluations as well.

Q How do you spell her last name?

A W-i-d-n-e-l-l.

Q Again, looking at these 2,750, the post Gulf Coast, if that's okay to refer to it that way, --

A Sure.

Q -- have any conclusions been drawn about the data you've obtained?

A I haven't come to any conclusions. I mean, it's just -- we're just entering data. I have some general overview thoughts about it, but it's not in any kind of numerical form.

Q What are your thoughts?

A That you don't have to be in the Gulf Coast to see manganese toxicity. That's a fairly widespread medical problem.

Q How did you get the 2,750 people? Were they referred to you by law firms?

A They come from a variety of sources. Most recently, probably the last four months, it seems as though the major -- and I've asked the patients how they got there -- it seems to be solicitations from the union, that the union has asked their membership to show up for a preliminary screening, which is not one that I have any control over. I see the patients who were judged to be positive on the preliminary screening.

Q So you see those who've survived or made the cut after the preliminary screening?

A The ones who were thought to have neurologic or gait abnormalities. The training for the people who do the screening was something that I was involved in a few years ago, and these examiners are only asked to see whether the patient is normal or abnormal. They don't make diagnoses.

And so they're looking for a selected group of physical signs, and if the patient has them, they are passed to the next level. If they have -- If they lack those findings, they are told that there's no problem.

Q The people who do that first-cut screening, do you know are they doctors or nurses or what their background is?

A They're doctors.

Q All right.

A They're all physicians.

Q And do you know the names of those physicians?

A I can't give you their names offhand. I've certainly had dinner with them often enough, I'd recognize them by face, but I'm terrible at names anyway, and I don't pay them, so I don't have any other reason to know their name specifically. They're resident physicians and basically have gone through a -- what we used to call kind of a Basic Neurology 101 exam course.

Q Are any of your opinions in the Boren case going to be based, in whole or in part, on anything you've seen in this post Gulf Coast group of people, this 2,750?

MR. McCOY: Let me object to the extent that testimony that he renders, of course, is something not that he's going to be choosing, but subject to that, the answer is yes, you know, he's -- he's been disclosed for this deposition, and these ongoing screenings have always been the basis -- disclosed basis for his testimony. He can answer.


Q I'm going to ask it again, in case you've forgot it.

A Okay. Yeah.

Q Are any of your opinions in the Boren case, Steve Boren's case, going to be based, either in whole or in part, on any observations, conclusions, whatever you want to call it, that you have made in this post Gulf Coast group, this 2,750 that you've seen?

A You mean exclusive of my previous medical experience, probably no. I mean, it's a continuum of medical experience and clinical experience dealing with this patient population. I don't think the last six months or eight months of what I've seen has modified my thoughts on the subject.

Q It may have affected your thoughts in the sense that it's confirmed what you thought maybe was the case?

A I mean, the autopsy certainly has helped confirm what I thought.

Q We'll get to the autopsies in a second. I'm trying to --

A Okay.

Q Let me just talk to you about, if I can, the 2,750. And, you know, the question is only this. Has whatever observations you've made about the 2,750, the post Gulf Coast group, in part, a basis for your opinions regarding Steve Boren and his condition?

A I guess I'm still -- I guess --

MR. McCOY: Let me --

THE WITNESS: -- confused by it.

MR. McCOY: Let me object again to the word. The word “basis” is a lawyer's word, it's a base -- it's a Rule 213 Illinois lawyer's word. I think the doctor's answered, and he said that that's confirmatory. If I were interpreting that as a lawyer to you under Rule 213, I would say yes, that's part of the basis of his testimony. So that's what I was trying to point out to you.

MR. GLOOR: I hear you. I just --

THE WITNESS: I guess I don't understand the --


Q I don't mean to do the legalese. All I'm saying is that your opinions on Boren will be based on the totality of what you've observed and your knowledge and training, as I understand it.

A That's correct.

Q And part of that totality, as of this moment in time, includes the 2,750 people you saw post Gulf Coast, correct?

A Right. My -- I guess my question is how unique that particular body of data is. It's just more data related to an earlier observation database.

Q All right. You were talking about postmortems. Let's talk about that, if we could. Have you, yourself, conducted any postmortems on people who had welding exposure?

A You mean --

MR. McCOY: Let me -- let me put one more objection in here. As I understand it, I don't know what that word “postmortem” means, but there's the brain has to be removed and then has to be prepared, and then somebody looks at it.

MR. GLOOR: I'll use whatever phrase --

MR. McCOY: Right. I mean, there's a number of steps in there that I understand. Subject to that, he can answer.


Q Well, I'm glad to use whatever phrase you're comfortable with, Doctor. I don't care.

A Well, I mean, the standard --

Q Autopsy, postmortem analysis, whatever you want is fine.

MR. McCOY: Are you talking about something under his direction, as opposed to him personally doing it? I mean, go ahead, he can answer.


Q Let me -- let me try it again, okay? Have you, yourself, done any autopsies on people who may have had welding exposure and neurologic injury?

A I haven't done the physical postmortem exam. In medical parlance, when one says did you get an autopsy, the implication is that the physician is one who has to be instrumental in talking to the family to get the body released and have the autopsy performed.

Yeah, we've been real -- we've been involved in doing that, not just with our welders or people with occupational histories, but with our patient population as a whole, because I think there's a need for more pathological confirmation.

So in the context of that, we have had contacts with a number of families where the individual in question has a history of welding exposure. And in -- now in three -- in two cases with welding exposure, one with elemental manganese exposure, we have obtained a central nervous system for pathological analysis.

Q As of this moment in time, are there two autopsies then that you're aware of?

A There's three.

Q And do you have names on them?

MR. McCOY: Object to the release of any names.


Q Well, let me ask -- I'll rephrase it. Is Mr. Edwin someone you looked at?

MR. McCOY: Same -- same objection. I mean, he can -- he can talk about something, but not by -- by name.

MR. GLOOR: Let me sort of complete the question. It won't be very --

MR. McCOY: I just want to make sure he understands the parameters, because these are -- these are -- these are confidential medical information on these patients, for which we haven't provided any releases.

(There was discussion off the record.)


Q I actually have an autopsy report on Andonio Edwin.

A And I didn't include that because I wasn't his doctor. The autopsy was obtained via --

Q Have you seen that autopsy?

A Yeah, I saw the report; I didn't see the slides.

Q Besides Mr. Edwin, there are three others, if I understand what you're saying.

A Correct.

Q And you have the reports in your control or at the office here?

A Only one report, his histopathological report, is done. The autopsies are done, the central -- One -- one brain was -- I don't know what the legal term was -- it was impounded or otherwise restricted from being further analyzed.

Q Was that -- was that the Bolatto brain?

A (Witness nods head.)

MR. McCOY: Let me object -- let me object again to the --

MR. GLOOR: Why are we doing this, Bob? We're making this a five-hour deposition.

MR. McCOY: Well, because -- because there is specific rules about this. I mean, a doctor in Illinois can testify to something involving his own patients. He can do that freely. You can't ask him the names of those patients, but he can -- he can base his training and experience on that.

Now, if -- if he is -- if it's one of his patients, he can talk about that -- that work he's done in connection with it as part of his training and experience, as part of his basis, but he can't disclose that specific patient's medical history by name.

MR. GLOOR: I'm just trying to ask a question.

MR. McCOY: Well -- well, no, because I'm not going to let this privilege be violated, and I don't think the doctor wants to either. I mean, if some family is reading the transcript in another case --

MR. GLOOR: Nor do I. Let me ask a question.

MR. McCOY: Don't ask by name.

MR. GLOOR: If I ask for a name, then you'll see it coming, but I don't think I will. Let me see if I can ask a question so that I can actually be at home on Christmas Eve. There are -- Okay.

MR. McCOY: Well, you start early.

MR. GLOOR: You and I have agreed -- No, it's Friday, and this is Wednesday, that's my concern.

Q The Edwin dep -- Edwin autopsy we've talked about, you haven't -- you've seen the report, and that's it, correct?

A Correct.

Q There are three other circumstances -- three other people where -- I'll withdraw that.

There is another autopsy that's been completed, correct?

A Correct.

Q Besides Edwin. And that's the one done by Dr. Ho?

A Correct.

Q And have you seen the report on that one?

A Yes.

Q And is that a report that is in the office somewhere here?

A Yes.

Q Can I have a copy?

A I can get one for you.

Q I'll take it.

MR. McCOY: Let me, again, I'm going to object because we don't have a release on this, and the patient's name is confidential for sure.

MR. GLOOR: Take the name off. I don't care if I ever see the name, but if it's something you've looked at that is part of your totality of background and giving opinions, I think I have a right to see it.

MR. McCOY: He's not -- No, he's not required to produce the medical records of the patient in his own practice. That law is clear in Illinois. He can testify about this. He can testify about it, and he can talk about it, but he's not required to produce any records. We would have to get a waiver from the Patient B family. I'll say that -- I'll say that name because that is a name --

MR. GLOOR: How do you spell his name?

MR. McCOY: But we would have to get that --

MR. GLOOR: Patient B --

THE WITNESS: (Spelled name.)

MR. McCOY: He can't talk -- he can't talk about that patient.

MR. GLOOR: Let me say a couple things if I've got to engage on this collateral stuff, I suppose --

MR. McCOY: And that's confidential on the record.

MR. GLOOR: Bob --

MR. McCOY: Okay?

MR. GLOOR: I don't think you're right on the law, but I'm not gonna --

MR. McCOY: I've researched it.

MR. GLOOR: I don't care what you've done to it.

MR. McCOY: It's clear.

MR. GLOOR: You aren't right on the law, but you and I can't decide this, because there's no one here with a -- with a robe on here who will decide it. So let me do it the best I can, and if we have to take something in front of a judge later on, we can do it, but stop telling me what you think the law is. Let me go back.

Q Okay. We've talked about Edwin, right, Doctor?

A Correct.

Q There is another autopsy by Dr. Ho. Is that H-o?

A Correct.

Q And he's a Wisconsin doctor, as I understand it.

A Correct.

Q And that's one that you have here, and I think you've even told me the name, it's Patient B, I think is the --

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