Examination 4 direct and cross of orthopedic surgeon in med mal suit

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CROSS-EXAMINATION

BY MR. GOLDBERG:

Q. Good afternoon, Dr. Thometz.

A. Good afternoon.

Q. Now, I've never met you before prior to this morning when I introduced myself for a second or two; isn't that correct?

A. That's correct.

Q. Nevertheless, sir, your deposition was taken on January 24th of this year by Mr. Hellner, my associate; is that correct?

A. That's correct.

Q. Now, Doctor, just a couple of things before we begin.

Ms. Schichtel had asked you a couple of questions about your charges for your time. I didn't quite get them all.

Your charges for time are $250 an hour for review, right?

A. Yes.

Q. Like reading depositions, reviewing charts, correct?

A. Yes, that's correct.

Q. And five, $600, which is it, Doctor, for depositions? I thought it was 650.

A. Yeah, it may have changed recently with the college. They change it from year to year, and I am honestly not sure. I mean I could give you the exact information, but I honestly don't know.

Q. But at your deposition, it was 650 to your understanding?

A. Could be 650.

Q. And trial testimony is what, 750?

A. You know, I'm not sure about that.

Q. Or is it a thousand?....

A. They may have a day rate for that.

This is the first time that I've actually given testimony at a trial, so -

MR. GOLDBERG: Well, your Honor, would you ask him to just please answer the question?

THE COURT: Doctor, is it 750?

THE WITNESS: I honestly don't know. I think if we're here for the whole day, the college has a? rate, but I'm not sure exactly what it is.

THE COURT: Do you know or don't you know?.

THE WITNESS: I don't know.

BY MR. GOLDBERG:

Q. Now, Doctor, you were first contacted in this case by Ms. Schichtel, and she told us about the first date that you were contacted, which was in fact August 14th, 1998; isn't that right?

A. That's correct.

MR. GOLDBERG: Could you put up Number 7, please, of the letters, August 14th, Page 7 and 8?

MR. NICHOLSON:. August 14th?

MR. GOLDBERG: Yes.

MS. SCHI CHTEL: Your Honor, I don't need the court reporter, but I just have on thing to raise.

THE COURT: Excuse us.

(Discussion between Court and counsel out of the hearing of the jury and reporter.)

BY MR. GOLDBERG:

Q. Now, on August 14th, Ms. Schichtel, Doctor, sent you a letter, and it says: “Thank you for agreeing to review this case on behalf of Dr. Sam Jaglan.

Now, you agreed to review this case as of August 14th; isn't that correct?

A. That's correct.

Q. “I am enclosing a number of medical records for your review.”

You'd have also reviewed those; isn't that correct?

A. The ones that she enclosed?

Q. Yes.

A. Yes.

Q. “And representative x-rays will be forwarded under separate cover.”

So you didn't have the necessary x-rays at that time; is that correct, sir?

A. That's correct.

Q. “The materials enclosed are as follows.” Now, these would have been all materials. that you were going to be reviewing based upon your agreeing to review this case on behalf of Dr. Jaglan, right?

A. That's correct.

Q. And of course you're charging for your time; isn't that correct?

A. That's correct.

Q. Plaintiff's complaint and consult report., you would have read that?

A. Yes.

Q. And the consult report was what, sir?

A. The consultant's report, -

MS. COSGRAVE: Objection as to relevance, your Honor.

THE COURT: That will be sustained.

MR. GOLDBERG: May I have a sidebar?.

THE COURT: Sure.

(Whereupon, the following proceedings were had outside the hearing and presence of the jury.)

MR.??DBERG: One of the reasons I also wanted to come out, Judge, is I wanted to have a continuing objection.

I don't believe under trial order the witness can say he doesn't know when it comes to his financial information, which is very much significant.

How much his rate is at a trial testimony I think it's critical, and I think that invites error. That's what Trower says, it's reversible error not to have that information.

And I think I'm entitled to have some definite sum. I don't care if he has to call his hospital and find out. I don't want to be put in that posture where I'am precluded.

He didn't know it at the dep. He knew it was asked. He's had certainly over a month to get it. And I think that that's a problem for me.

But secondly, the second issue here, my objection is that I have the right to go into everything that he was provided and everything he reviewed, and he said he did read that and he did review that, and I have the right to show whether it had any impact upon his opinions or not.

So the fact that it's going to be putting him immediately in an adversary position that he knows what our position is in this case, and I don't think I should be precluded from going into anything that he used.

MS. SCHICHTEL: Well, on the first thing, it's true, at his deposition, he was a little unclear because he says the college sets the rates.

Nobody asked him to go find out exactly what the rate was, and he was more than agreeable that it could be a thousand dollars a day.

MR. GOLDBERG: That's what was intimated, a thousand an hour.

MS. SCHICHTEL: No, no.

MR. GOLDBERG: Yes, it is.

MS. SCHICHTEL: Whatever.

As for the other, I mean this is a 2622, which is part of the complaint and therefore has to be sent to him.

I don't even remember, quite frankly, whether that was one of the people that ended up testifying.

MS. COSGRAVE: I don't think it was identified.

MS. SCHLCHTEL: It Wasn't identified. It was an anony?? is thing.

MR. GOLDBERG:. I don't care who did it. I just want to go into did he use it or not and what did it contain.

MS. COSGRAVE: Well, it was my objection, your Honor, and the basis of the objection is that I think that it goes to a collateral issue in this case, it will give the impression that there is some accreditation to the plaintiff filing the complaint. The jury will not be able to understand what this is all about.

As I said, it's an unidentified author who states the statutory conclusion that there's a reasonable and meritorious basis for filing this cause of action.

I think to allow any testimony as to the content of the consultant's report, whatever it says, whatever materials were reviewed, is totally improper, collateral and prejudicial.

And I would just note for the record, your Honor, that it's ironic that Counsel is making an argument with respect to Trower when every single one of his experts testified that they hadn't even submitted or been paid anything in this case.

MR. GOLDBREG: They told you with their rates were, they told you how many times they've testified, they told you what percentage of their income they received. I'll happy if I get any of that from this witness.

THE COURT: Well, I'll tell you what. I'll declare a recess and he can go call the University of Wisconsin and find out.

MR. GOLDBERG: I'd like to do that.

THE COURT: And in terms of her objection as to the consultant's report, that's sustained.

MR. GOLDBERG: Fine.

THE COURT: But we'll go back out there and I'll have the jury taken out right now.

MR. GOLDBERG: Will you just have him come out? It shouldn't take him long.

THE COURT: I don't want the jury sitting out there while he's calling the University of Wisconsin.

And I don't think we can get a long-distance line for him, but other than that -

MR. GOLDBERG: He can use my phone.

THE COURT: Give him your cell phone.

Doctor, Mr. Goldberg is going to be kind enough to if you'd like to step out in the hallway, you can call -

THE WITNESS: Me to step out?

THE COURT: Yeah.

We'd like you to call the University of Wisconsin and find out what your rate is for testifying at trial.

THE WITNESS: The medical college, you mean?

THE COURT: Yeah, somebody there who would know there at the medical college what your rate is.

(Whereupon, the following proceedings were held in open court.)

THE COURT: Mr. Goldberg, would you proceed with your cross -examination?

MR. GOLDBERG: Yes, your Honor.

BY MR. GOLDBERG:

Q. Doctor, as someone who agrees to review a case, you certainly, as I asked, would charge for your time, correct?

A. That's correct.

Q. And your time for testifying in court is how much an hour?

A. It's $650 an hour.

Q. Now, in this particular??e, sir, you were provided - one of the things was the plaintiff's complaint; is that correct?

A. That's correct.

Q. That didn't help you very much in this case, did it?

A. No.

Q. Nevertheless, you do charge for your time when you take time away from whatever you do, right?

A. Yes.

Q. So if you're reviewing depositions, you charge for your time, right?

A. That's correct.

Q. If you're reviewing hospital records, you charge for your time?

A. That's correct.

Q. If you're reviewing deposition transcripts, you charge for your time?

A. That's correct.

Q. If you're reviewing letters, you charge for your time?

A. Sure.

Q. If you're meeting with Ms. Schichtel or somebody ise, you charge for your time?

A. Yes.

Q. And you keep records of your time; isn't that correct?

A. Yes.

Q. Because obviously, if you spend an hour, you want to be paid for that hour, correct?

A. Sure, sure.

MR. GOLDBERG: Pete, would you put that up, please?

BY MR. GOLDBERG:

Q. Now, some of the materials that you've been provided are referenced here. Materials enclosed are as follows, folder number one, and amongst other things, it's got deposition of Dr. Jaglan, two sessions; is that correct?

A. That's correct.

MR. GOLDBERG: Peter, could I please have the depositions of Dr. Jaglan, the original of what we have?

MR. NICHOLSON: Both sessions?

MR. GOLDBERG: Yeah, one at a time. We'll talk about those.

Thank you.

BY MR. GOLDBERG:

Q. Now, Doctor, the depositions of Dr. Jaglan that you reviewed, one occurred on the 9th day of December, 1996; isn't that correct?

A. If you say so.

Q. Well, let me hand it to you.

A. Sure. Okay.

Q. And certainly you would have read the deposition, right?

A. Uh-huh.

Q. Yes?

A. Yes.

Q. And the materials that are provided, you would review those, too, when there's references; is that correct?

A. Yes.

Q. And the first deposition was 175 pages, correct?

A. It was long, yes.

Q. And then you would have reviewed all of these notes; is that correct?

A. That's correct.

Q. So tell the ladies and gentlemen of the jury how much time you spent reading the first dep?

A. couldn't tell you offhand. I mean I don't have my records here.

Q. Two hours, one hour, three hours?

A. You're talking about his deposition and the hospital discharge summaries, too?

Q. Yeah, this.

A. The hospital records?

Q. This.

A. That would be a couple of years at least.

Q. Now, this would be materials that Ms. Schichtel asked you to review, and she had a purpose in that; isn't that correct?

A. That's correct.

Q. And at the end of this letter which I'll come to, she asked you after you've completed your evaluation, call me so we can discuss your opinions; isn't that correct?

A. That's correct.

Q. And you did that; isn't that true?

A. That's true.

Q. And you gave her your opinions about Dr. Jaglan's care in this case; isn't that correct?

A. Yes.

Q. And that he met the standard of care; isn't that right?

A. That's correct.

Q. And did you make notes on these depositions?

A. For the most part, no.

Q. And before you would then give a deposition, you would review these materials again, wouldn't you?

A. That's correct.

Q. So you could answer the questions that you knew would be asked?

A. This is true.

Q. So how much time did you spend approximately the second time you reviewed this?

A. Probably a little bit less, maybe an hour and a half to be somewhat familiar with it.

Q. And then Doctor, prior to coming today, prior to coming today to give your testimony in this case, you'd have reviewed these depositions again because you knew I'd be asking you questions, right?

A. Sure, sure.

Q. So how much time did you spend for the trial?

A. would guess an hour may??.

Q. Now, the second deposition of Dr. Jaglan took place, on July 24th, and that deposition was 220 pages, and there were a number of exhibits with that.

You'd have read this when Ms. Schichtel sent it to you, wouldn't you?

A. Sure.

Q. So over 200 pages, about the same time? The other was only 175.

A. Is the whole thing deposition?

Q. This is all deposition.

A. Yes.

Q. 200.

A. So as far as time wise, that would be a couple of hours I would say, sure.

Q. And would it be about the same for the other stuff?

A. I would say about the same, yes.

Q. And then Ms. Schichtel sent you Dr. Krieger's deposition, the infectious disease consultant, two sessions.

MR. GOLDBERG: Could I have those, Peter?

BY: MR. GOLDBERG:

Q. Now, Doctor, the first pa?? of Dr. Krieger's deposition occurred on the 23rd of September; is that correct?

A. That is correct.

Q. And her deposition was 130 pages, and there were references to various materials that are not here.

You'd have spent an hour, an hour and a half on that?

A. Yes.

Q. And an hour and an hour to review?

A. Yeah, I would say that's about right.

Q. And then the second part of her deposition was the 12th day of February of ′98, and. that went from the 130, so 130 to 220, almost another hundred pages, another hour?

A. Yeah.

Q. And if there were exhibits, you would have reviewed those, right?

A. Yes, correct.

Q. So let's put an hour and an hour and an hour, right?

A. Sure.

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