LymeNet Law Pages
Case History Document



Foley v. Klein, et al
Entered By: Ira M Maurer/LymeNetDate Created: 10/27/97
Document Type: Deposition
Title: Pre-Trial Testimony of Defendant Richard Klein, M.D.
0001
1
2 SUPREME COURT OF THE STATE OF NEW YORK
3 COUNTY OF WESTCHESTER
4 -----------------------------------------------
5 Index No. 94/11520
6 ELIZABETH B. FOLEY and
7 ROBERT J. FOLEY,
8 Plaintiffs,
9 -against-
10 DR. RICHARD S. KLEIN, et al.,
11 Defendants.
12 -----------------------------------------------
13
50 Main Street
14 White Plains, New York 10601
Wednesday, December 6, 1995
15 10:25 A.M.
16
17
18 EXAMINATION BEFORE TRIAL
19 of
20 RICHARD S. KLEIN,
held at the above place and time,
21 before a Notary Public within and
for the State of New York.
22
23
24 MICHAEL J. CATANIA,
Reporter
25
INTERIM COURT REPORTING
White Plains, New York
(914) 761-6600
0002
1
2 APPEARANCES OF COUNSEL:
3
4 ELKIND, FLYNN & MAURER, P.C.
Attorneys for Plaintiffs
5 11 Martine Avenue
White Plains, New York 10606
6
BY: IRA M. MAURER, ESQ.
7
8
DU BOIS, BILLIG, LOUGHLIN, CONATY & WEISMAN
9 Attorneys for Defendants Klein and Daniels
195 Lake Louise Marie Road
10 Rock Hill, New York 12775
11 BY: JACOB BILLIG, ESQ.
12
13 WILSON, BAVE, CONBOY, COZZA & COUZENS
Attorneys for Defendant Brenner
14 2 William Street
White Plains, New York 10601
15
BY: ALEXANDRA C. KARAMITSOS, ESQ.
16
17
RENDE, RYAN & DOWNES, L.L.P.
18 Attorneys for Defendant
Northern Westchester Hospital
19 202 Mamaroneck Avenue
White Plains, New York 10601
20
BY: ANTHONY J. IACONIS, ESQ.
21
ALSO PRESENT:
22
ROBERT J. FOLEY
23
MICHAEL E. DANIELS, M.D.
24
25
INTERIM COURT REPORTING
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0003
1
2
3
4
5 IT IS HEREBY STIPULATED AND AGREED, by
and between the attorneys for the
6 respective parties hereto, that all rights
provided by the Civil Practice Law and
7 Rules, including the right to object to any
question, except as to form, or to move to
8 strike any testimony of this examination
are reserved, and, in addition, the failure
9 to object to any question shall not be a
bar or waiver to make such motion at, and
10 is reserved for the trial of this action.
11
12 IT IS FURTHER STIPULATED AND AGREED,
that this examination may be signed and
13 sworn to by the witness being examined
before a Notary Public other than the
14 Notary Public before whom this examination
was begun, but the failure to do so, or to
15 return the original of this examination to
counsel, shall not be deemed waiver of any
16 rights.
17
18 IT IS FURTHER STIPULATED AND AGREED,
that the filing of the original of this
19 examination is waived.
20
21
22
23
24
25
INTERIM COURT REPORTING
(914) 761-6600
0004
1
2
3 R I C H A R D S. K L E I N ,
4 having been first duly sworn by
5 Michael J. Catania, a Notary Public
6 within and for the State of New York,
7 was examined and testified as
8 follows:
9
10 oOo
11
12 EXAMINATION CONDUCTED
13 BY MR. MAURER:
14 Q. State your name and address for
15 the record, please.
16 A. Richard S. Klein, 46 Annandale
17 Drive, Chappaqua, New York 10514.
18 Q. Good morning, doctor.
19 Do you know the court reporter
20 who is taking down this deposition?
21 A. Not at all.
22 Q. Doctor, let's start out by
23 finding out a bit about your educational
24 background. Could you tell me where you
25 went to college and medical school?
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1 RICHARD S. KLEIN
2 A. I went to Queens College in
3 Flushing, New York, two medical schools,
4 the University of Rome faculty of medicine
5 and surgery in Rome, and completed the last
6 two years at the New York Medical College
7 which was in New York City at the time.
8 Q. Doctor, where did you have your
9 internship?
10 A. My internship was at New York
11 Medical College which is in New York.
12 Q. How about your residency?
13 A. First year of internal medicine
14 was at New York Medical College, second
15 year of internal medicine was at Montefiore
16 Hospital in Bronx, New York. And I had one
17 year of fellowship in infectious diseases
18 at Montefiore Hospital.
19 Q. So you are an internist with a
20 subspeciality in infectious diseases?
21 A. Yes.
22 Q. Have you had any other medical
23 training other than what you have told me
24 so far?
25 A. Three years of active duty as an
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2 active corpsman in the United States Navy.
3 Q. Overseas?
4 A. Partially.
5 Q. Where was that?
6 A. Working in prisoner of war camps
7 in two wars in Israel.
8 Q. Did you do that that in the '67
9 and '73 wars?
10 A. That is correct. And also in the
11 Lebanon crisis, although I just worked as a
12 consultant on infectious diseases, mostly
13 in '73 in Lebanon.
14 Q. Have you had any other training
15 in the field of medicine?
16 A. I don't think so.
17 Q. Are you board certified?
18 A. Not board certified.
19 Q. Can you become board certified as
20 an internist?
21 A. Yes.
22 Q. Can you become board certified as
23 an infectious disease physician?
24 A. Yes.
25 Q. Have you ever taken the boards to
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1 RICHARD S. KLEIN
2 be certified?
3 A. I took the boards twice and
4 didn't pass it and I never went to pass it
5 again.
6 Q. When did you take the boards?
7 A. Immediately after my training,
8 about a year after my training.
9 Q. Could you give me the years?
10 A. Medical school?
11 Q. Yes, through your fellowship.
12 A. Graduated medical school in 1967,
13 internship was finished in 1968, in June,
14 first year residency in 1969, June; second
15 year residency 1970, June, fellowship 1971,
16 June.
17 Q. Doctor, besides the training that
18 you have told me about, have you gone for
19 any continuing education in the field of
20 medicine?
21 A. I do that probably every year.
22 Q. Where do you go?
23 A. For many years to Cook County
24 Hospital review course.
25 Q. Where was that?
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2 A. Cook County, Chicago.
3 And I get credit because I teach
4 at medical school, so there is some sort of
5 relationship between teaching and getting
6 advance credit.
7 Q. Do you teach at New York Medical
8 College?
9 A. Yes, that is correct.
10 Q. How long have you taught there?
11 A. Since '73 teaching infectious
12 diseases and internal medicine.
13 Q. How many years have you taught
14 infectious diseases since you started
15 there?
16 A. Yes.
17 Q. Doctor, have you received any
18 other training in any field of medicine
19 that you have not told me about?
20 A. Not off the top of my head.
21 Q. Have you had any training
22 specifically in the area of Lyme's disease?
23 MR. BILLIG: Other than what
24 he has already testified to?
25 MR. MAURER: He has not
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1 RICHARD S. KLEIN
2 specifically made reference to Lyme
3 disease. That's why I am asking
4 specifically what training he has had in
5 that area.
6 MR. BILLIG: Other than
7 training in the specialties that he has
8 already testified to.
9 MR. MAURER: If any of that
10 involved Lyme disease training, I would
11 like to know it.
12 BY MR. MAURER:
13 Q. Tell me everything that you have
14 done to become educated in the field of
15 Lyme disease.
16 A. Number one, I am trained as a
17 specialist in infectious diseases which
18 encompasses one of the diseases that I am
19 specialized in which is Lyme disease.
20 Q. When you were trained in
21 infectious diseases, Lyme disease was not
22 part of the curriculum, was it?
23 A. It was not.
24 Q. Tell me what you did have
25 training in specifically about Lyme
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1 RICHARD S. KLEIN
2 disease.
3 A. Okay. Specifically reading most
4 of the infectious diseases journals
5 regarding Lyme disease, attending
6 conferences, attending conferences for
7 infectious diseases, ICAC meetings,
8 infectious diseases annual meetings
9 regarding annual meetings.
10 Q. What is ICAC?
11 A. I forget, quite frankly.
12 Q. What physicians have you heard
13 speak on the subject of Lyme disease
14 specifically at any conferences or any
15 meetings that you have attended?
16 A. I cannot recall right now.
17 Q. Do you remember any of them?
18 A. Sorry.
19 Q. Do you have any materials that
20 you obtained when you went to conferences
21 on Lyme disease or seminars on Lyme disease
22 that were given out when you went and you
23 saved?
24 A. I don't recall.
25 Q. Do you keep a file at your office
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1 RICHARD S. KLEIN
2 or at home with regard to Lyme disease
3 materials?
4 A. Yes.
5 Q. What is in the file?
6 A. I am sure multiple articles on
7 Lyme disease from infectious diseases from
8 the Journal of Infectious Diseases.
9 Q. How many articles would you
10 estimate are in there?
11 A. A couple of dozen, I would say
12 about 12 to 15.
13 Q. And you have read that 12 to 15
14 articles that are in the file?
15 A. Yes.
16 Q. Doctor, I would ask you to
17 provide your attorney with a copy of those
18 articles and would request production of
19 them at a future date when they are
20 available.
21 MR. BILLIG: We will take that
22 under advisement.
23 ** INFORMATION REQUESTED TO BE SUPPLIED:
24 --------------------------------------
25 Q. Where is the file that you
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2 indicate those 12 to 15 articles are in, in
3 your office or at home?
4 A. In my home.
5 Q. Doctor, have you ever spoken on
6 the subject of Lyme disease at any medical
7 meetings, conferences or seminars?
8 A. No.
9 Q. Have you --
10 A. I am sorry. On seminars, yes,
11 not medical.
12 Q. What type of seminars?
13 A. To the public.
14 Q. So that they were not medical
15 meetings with other doctors, they were
16 meetings for the general public to educate
17 them about the subject of Lyme disease?
18 MR. BILLIG: Objection to the
19 form. They could be medical meetings for
20 the public or there may have been doctors
21 in attendance.
22 If you can, rephrase the
23 question.
24 MR. MAURER: Sure.
25 Q. Where were the meetings for the
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2 public?
3 A. I think they were at local
4 schools and at synagogue.
5 Q. Local schools where, Chappaqua?
6 A. Yorktown.
7 Q. And what synagogue?
8 A. The Yorktown Jewish Center, about
9 three or four years ago.
10 Q. How many times have you done
11 this?
12 A. Just a few.
13 Q. Are there any written materials
14 that you prepared which you used in
15 conjunction with those public meetings or
16 public seminars?
17 A. I am sure that they are or there
18 were at the time.
19 Q. Did you retain them?
20 A. I don't think so.
21 Q. If you did retain them where
22 would they be?
23 A. In my files at home.
24 (Witness and counsel confer.)
25 MR. MAURER: It is not my
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2 practice to get into a lot of colloquy
3 during depositions. I would prefer that
4 you not consult with the doctor during the
5 deposition.
6 Obviously, I cannot preclude it.
7 I will ask the reporter to note it every
8 time that it happens.
9 MR. BILLIG: That's fine. I
10 don't have a problem with that.
11 Q. Doctor, are there any doctors in
12 the field of Lyme disease that you consider
13 to be experts whose opinions you follow?
14 A. The one locally, you know, a
15 couple of doctors.
16 Q. Who locally?
17 A. Gary Wormser.
18 Q. Dr. Wormser is chief of
19 infectious diseases at New York Medical
20 College; is that correct?
21 A. That is correct.
22 Q. Who else locally?
23 A. I guess myself, Peter Welch.
24 Q. From Northern Westchester Medical
25 Center?
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1 RICHARD S. KLEIN
2 A. That is correct. He is the chief
3 of infectious diseases.
4 Q. Anyone else locally?
5 A. Not off the top of my head.
6 Q. How long have you considered
7 Dr. Wormser and Dr. Welch to be experts in
8 the field of Lyme disease whose opinions
9 you follow?
10 A. I have no idea. I can't put a --
11 Q. Back into the '80s?
12 A. Perhaps.
13 Q. What other physicians outside of
14 the local area do you consider to be
15 experts in the field of Lyme disease whose
16 opinions you regard highly?
17 A. Off the top of my head I guess
18 those are the only two at present.
19 Q. What about Dr. Alan Steer?
20 A. Dr. Alan Steer, I would value his
21 opinion.
22 Q. What about Dr. Leonard Siegal?
23 A. I don't know Dr. Leonard Siegal.
24 Q. He is at Robert Wood Johnson
25 Medical Center in New Jersey. You don't
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1 RICHARD S. KLEIN
2 know him, sir?
3 MR. IACONIS: Objection to
4 form.
5 MR. BILLIG: He said he didn't
6 know him.
7 Q. Does my telling you where he
8 works help you to remember the doctor?
9 A. I just don't remember the name.
10 Q. How about Dr. Patricia Coyle at
11 Stonybrook?
12 A. I don't know the name.
13 Q. How about Dr. John Halpern at New
14 York University Hospital in Manhattan?
15 A. I don't know the name.
16 Q. How about Dr. Raymond Dattwyler?
17 A. I don't recall the name but I
18 don't remember much about Dr. Dattwyler.
19 MR. BILLIG: He is also at
20 Stonybrook, right?
21 MR. MAURER: He is in charge
22 of the Lyme disease clinic.
23 Q. Are you familiar with the
24 bacteria known as Borrelia Burgdorferi?
25 A. Yes.
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1 RICHARD S. KLEIN
2 Q. Do you know how it got its name?
3 A. Yes.
4 Q. Could you tell me what you know
5 in that regard, please?
6 A. It was found by a person, named
7 after a doctor by the name of Burgdorf, I
8 think.
9 Q. Do you know where he works?
10 A. I thought he was with Stone --
11 no. The history is that it was -- I think
12 he was in Yale New Haven at the time, but I
13 am not sure.
14 Q. What kind of physician is he?
15 A. He is a laboratory specialist or
16 microbiologist, I think.
17 Q. Doctor, in 1992, let's say in
18 July of 1992, what tests were commonly used
19 and accepted for the purposes of diagnosis
20 of Lyme disease?
21 A. I believe in 1992 there are a
22 couple of commercial tests based on
23 agglutination.
24 There was some ELISA test and
25 then there was the Western Blot Test and
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2 there were various tests that were -- you
3 have one in front of you from an office,
4 and I forget the exact technology at the
5 time.
6 Q. What is a Lyme titre?
7 A. That is a measure of antibodies
8 to the Lyme bacteria.
9 Q. Was that type of diagnostic test
10 commonly used in the summer of 1992 to
11 diagnose Lyme disease?
12 A. Yes.
13 Q. What is a Western Blot Test?
14 A. In 1992?
15 Q. Yes; same time period. What was
16 your understanding of what the Western Blot
17 Test was?
18 A. In 1992 the Western Blot Test was
19 another way of measuring whether a Lyme
20 test was positive.
21 Q. How does the test perform that
22 function?
23 A. It measured many other reactants
24 in the patient's sera, many other parts of
25 the Lyme bacteria.
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2 Q. Could you be a bit more specific,
3 please?
4 MR. BILLIG: Note my objection
5 to form of the question. When you say
6 specific --
7 Q. Could you tell me a bit more of
8 what you are talking about and explain it a
9 bit more, please, if you can?
10 A. The Western Blot measures various
11 portions, parts of antibodies. It measures
12 antibodies that are found on the Lyme
13 bacteria.
14 And there are some which are
15 early finding and late finding; that is,
16 that there are some formed by globulins and
17 these reactions are measured by specific
18 test. I don't know how the test is done,
19 really, so I am not a lab technician.
20 Q. How was the test measured in
21 terms of results?
22 A. I don't understand.
23 Q. How were the results reported?
24 MR. IACONIS: I will object to
25 the form of that question.
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2 MR. BILLIG: Obviously you
3 don't mean how --
4 Q. When you receive the report back
5 from the laboratory that actually does the
6 Western Blot Test, what is the format of
7 the report?
8 A. Okay.
9 MR. BILLIG: In 1992?
10 MR. MAURER: Yes.
11 A. The first is a disclaimer stating
12 that there is no -- that -- in 1992, in any
13 event, there is the disclaimer saying that
14 the tests may not be able to be
15 interpreted; that is, if a test is positive
16 or negative, it may or may not mean that
17 the person does or does not have Lyme
18 disease.
19 It goes on to give you various
20 positive or negative results to
21 different -- different antibodies.
22 Q. How does it do that?
23 A. It --
24 Q. How does it report that?
25 A. It tells you which alleles or
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2 antibodies were tested and if they were
3 positively or negatively found and then it
4 gives you a disclaimer.
5 (Witness and counsel confer.)
6 Q. Can you answer the question any
7 further without looking at any of the test
8 reports?
9 MR. BILLIG: I don't think
10 that this is a memory contest. He has been
11 engaging in a dialogue for a period of
12 time. The witness would like to look at
13 the report.
14 MR. MAURER: I have a problem
15 with that. It is not a test. I want to
16 know what he can recall without looking at
17 document. I am entitled to do that.
18 I will be happy to give him a
19 report to look at once he exhausts his
20 memory.
21 MR. BILLIG: Why don't you ask
22 him if he needs to look at a report in
23 order to further answer your question.
24 Q. Can you provide any further
25 information about how the Western Blot Test
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1 RICHARD S. KLEIN
2 report spells out the report findings
3 without having the chance to look at a
4 report?
5 A. I would feel more comfortable if
6 I had the report.
7 Q. Doctor, are you familiar with the
8 bands that are referred to in Western Blot
9 Reports?
10 A. Yes.
11 Q. What do the bands refer to or
12 pertain to?
13 A. I was under the impression that
14 they pertained to the certain type of
15 antibodies, an area on the antibodies that
16 are produced when -- period, produced.
17 Q. Are you familiar with something
18 called OspA?
19 A. Not offhand.
20 Q. Does the Western Blot Test report
21 provide normally criteria for how they
22 determine whether or not to report it as a
23 positive or negative test for Lyme disease?
24 MR. IACONIS: Objection to
25 form.
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2 MR. BILLIG: Yes, I mean which
3 did -- first of all, in 1992?
4 MR. MAURER: Yes.
5 MR. BILLIG: Can you read back
6 the question.
7 (The pending question was read.)
8 (Witness and counsel confer.)
9 MR. IACONIS: Counsel, do you
10 mean a range of what would be normal and
11 abnormal findings?
12 MR. MAURER: I am asking him
13 if it provides criteria for how they report
14 it.
15 MR. IACONIS: To that extent I
16 don't understand the question. I will
17 object to form.
18 Q. Do you understand, doctor?
19 A. I have a lot of trouble in
20 understanding you. It is not that -- I am
21 just having a lot of trouble in
22 understanding your questions.
23 Q. At any time you do not understand
24 a question, let me know right away or else
25 I will have to assume that you do.
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2 A. Okay.
3 Q. In 1992 did the U.S. Centers for
4 Disease Control have criteria which it
5 published for diagnosis of Lyme disease?
6 A. I am sure that it did, yes.
7 Q. Do you recall what the criteria
8 was with regard to the Western Blot Test?
9 A. I don't specifically recall.
10 Q. In 1992 were you aware that
11 Western Blot Tests were reported in terms
12 of numbered bands?
13 A. Yes.
14 Q. In.
15 Q. In 1992 did you know how many
16 number bands and which number band had to
17 be reported as positive in order for the
18 test to be considered positive for Lyme
19 disease pursuant to the CDC criteria?
20 A. I don't remember.
21 Q. If a test, a Western Blot Test
22 was reported positive back in the summer of
23 1992, did that in and of itself provide a
24 sufficient basis to make a diagnosis of
25 Lyme disease?
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1 RICHARD S. KLEIN
2 A. Not at all.
3 Q. In the summer of 1992 what was
4 your understanding as to how the diagnosis
5 of Lyme disease was to be made by
6 physicians in your field within the
7 community where you practice medicine?
8 A. The diagnosis of Lyme disease is
9 quite complicated, because unlike other
10 spirochetal infections there is no specific
11 test to tell you whether a patient has an
12 active infection of Lyme disease, as in
13 syphilis where we have a test that is
14 positive if the person has had the disease
15 and another test that will tell if the
16 person has an active infection. Until
17 today there is no such test.
18 Q. You are referring to what is
19 commonly called a gold standard test?
20 A. I don't believe the term gold
21 standard test. There is no test that tells
22 you activity. We don't have a test that
23 tells you specifically whether a patient
24 has an active infection. Therefore, one
25 has to rely on other criteria as well as a
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1 RICHARD S. KLEIN
2 blood test.
3 Q. What are the other criteria?
4 A. The clinical impressions and --
5 okay.
6 Q. I am talking about back in the
7 summer of '92, and unless I tell you
8 otherwise, please assume that for all of
9 the questions.
10 A. Thank you.
11 Q. There is an outstanding question,
12 doctor.
13 I asked you what the other
14 criteria were.
15 MR. BILLIG: I thought he
16 answered it. He said clinical.
17 MR. MAURER: He said that
18 there were additional criteria.
19 BY MR. MAURER:
20 Q. Was there anything that you
21 wanted to say about the criteria? Because
22 I interrupted you before to tell you what
23 date to refer to.
24 A. The only thing I wanted to say
25 was clinical criteria and clinical
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1 RICHARD S. KLEIN
2 impression as well as a blood test.
3 Q. What are the clinical criteria
4 you are referring to?
5 MR. IACONIS: I will object to
6 the form of the question.
7 MR. BILLIG: That's very,
8 very, very broad.
9 MR. IACONIS: I believe that
10 the doctor referred to clinical impression
11 as opposed to clinical criteria.
12 MR. MAURER: I referred to
13 both, clinical impression and clinical
14 criteria, and he said blood test.
15 MR. BILLIG: When he testified
16 he used the word criteria and the witness
17 corrected me, it seemed to me that he said
18 impression.
19 THE WITNESS: I corrected the
20 word "criteria" to "impression." It is the
21 impression of, not the criteria.
22 Q. There is no clinical criteria
23 that you are listing, and I can take that
24 off my list that I am writing down; is that
25 correct?
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2 A. I --
3 MR. BILLIG: I object to form.
4 THE WITNESS: I really meant
5 to say clinical impression as well as blood
6 test. I am sorry if I confused the issue.
7 Q. With regard to clinical
8 impression, how would you arrive at the
9 clinical impression when evaluating someone
10 to determine if they may have or indeed do
11 have Lyme disease, back in 1992?
12 A. That's kind of a vague question.
13 Living in Yorktown, and Yorktown is
14 probably the epicenter of the Lyme disease
15 epidemic that we have, one has to be
16 suspicious of Lyme disease in many people
17 who you see.
18 People come in with a history of
19 tick bites, classically they have a rash
20 about 50 or 60 percent of the time. People
21 come in with -- people come in with a
22 classic rash and obviously that is
23 obvious.
24 I don't know what I am supposed
25 to be telling you.
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2 Q. I am asking you to tell me all of
3 the different things you look for when
4 someone comes into your office which you
5 consider in arriving at your clinical
6 impression of whether somebody does or does
7 not or may or may not have Lyme disease.
8 A. Okay. I think basically if
9 somebody has either joint problems or
10 neurologic problems or rash or fever of any
11 unknown origin, more specifically if they
12 have a rash or a history of a recent tick
13 bite, I would be suspicious of Lyme
14 disease.
15 Q. Is that everything, doctor?
16 A. There must be a lot more.
17 Q. Take your time.
18 A. Do you want me to write you a
19 textbook today?
20 Q. I want to know exactly what you
21 knew then. That's what I am here for, to
22 find out factually what you considered in
23 reaching your clinical impression as it
24 affected Mrs. Foley in the pertinent time
25 period in 1992.
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2 I would like to find out, without
3 rushing you, having you tell me everything
4 that you would consider in reaching that
5 clinical impression.
6 A. I am at a loss. If you are
7 saying fever as a presenting sign or rash
8 as a presenting sign --
9 Q. I am not asking you anything. I
10 am asking you what you would look for in
11 the clinical picture in terms of what you
12 were told and what you observed and things
13 that you knew, things that you would
14 consider in reaching your clinical
15 impression.
16 MR. BILLIG: Other than what
17 he has testified to, if that is the list
18 that is presently exhausted.
19 MR. MAURER: That's what I am
20 asking.
21 A. Those are the general common
22 presenting symptoms or signs that I would
23 consider looking at for the diagnosis of
24 Lyme disease, with the exception of perhaps
25 severe headache as a presenting sign.
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2 However, those signs have to be
3 interpreted with other things that the
4 patient has. Anybody who walks into my
5 office with a headache, I certainly don't
6 think they have Lyme disease. If somebody
7 comes in with fever, I don't specifically
8 think that they have Lyme disease. If
9 somebody comes in with a rash, I don't
10 specifically think that they have Lyme
11 disease.
12 I think that there has to be a
13 general impression dependent upon what the
14 patient presents with. And you are asking
15 me a very difficult question and I have
16 trouble answering it.
17 Q. Doctor, if someone came in with a
18 Lyme disease rash in 1992, just based upon
19 your observation of it could you determine
20 it was a Lyme disease rash back then?
21 MR. BILLIG: Note my objection
22 to the form of the question. You are
23 asking him if someone came in with a Lyme
24 disease rash could he determine that it was
25 a Lyme disease rash.
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2 Q. You made reference to a classic
3 Lyme disease rash. Tell me what a classic
4 Lyme disease rash looks like.
5 A. Okay. The classic Lyme disease
6 rash is a bull's eye type of rash with a
7 red inside, clear circle around it, and
8 another red circle around that. That is
9 the classic rash. And you may see many of
10 them on the body.
11 However, that is not the only way
12 a rash of Lyme disease can appear, but that
13 is the classic rash.
14 Q. Medically what is the term for
15 describing such a rash?
16 A. Chronicum migrans that you
17 mentioned before.
18 Q. Is there any other way to
19 describe it medically other than using the
20 ECM name?
21 A. That looks like a bull's eye.
22 Q. Have you ever heard of the term
23 an expanding annular rash?
24 A. No.
25 Q. In 1992, doctor, is it your
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2 testimony that you could not make a working
3 diagnosis of Lyme disease if you saw a
4 bull's eye rash as you have described it
5 without any further information?
6 MR. BILLIG: Objection. That
7 was not his prior testimony.
8 MR. MAURER: He stated earlier
9 that if somebody came in with a rash, that
10 he would not make a diagnosis based upon
11 the rash.
12 MR. IACONIS: A rash --
13 MR. BILLIG: You are putting a
14 specific slant on what he previously
15 testified, and he testified after that the
16 classic rash in Lyme is a bull's eye rash.
17 I have to object to the form of
18 the question.
19 BY MR. MAURER:
20 Q. Did you understand the question?
21 A. I think you got it wrong.
22 Q. If you saw what you described as
23 a classic bull's eye rash, in the summer of
24 1992, doctor, would you have made a
25 diagnosis of Lyme disease without observing
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2 any other symptoms or signs that you would
3 interpret as consistent with Lyme disease?
4 A. If the question is if I saw a
5 bull's eye rash in 1992 would I assume that
6 to be Lyme disease, the answer is yes.
7 Q. Would you treat based solely upon
8 the presence of the bull's eye rash without
9 any other symptoms solely as Lyme disease
10 back in the summer of 1992?
11 A. Yes.
12 Q. Am I correct in understanding
13 that you consider the Yorktown area to be
14 endemic to Lyme disease?
15 A. Yes.
16 Q. That was true in 1992?
17 A. Yes.
18 Q. Was Ossining also an area that
19 was considered endemic for Lyme disease?
20 A. Probably not as much so.
21 Q. Do you know?
22 MR. BILLIG: You just asked
23 him and he said probably not as much.
24 MR. IACONIS: Let's take a
25 short break.
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2 (Recess taken.)
3 BY MR. MAURER:
4 Q. Doctor, do you have any knowledge
5 of whether or not the New York State Health
6 Department maintains records of reported
7 cases of Lyme disease in the State of New
8 York?
9 A. Yes.
10 Q. Are you aware of the fact that
11 they do it by county?
12 A. Yes.
13 Q. And Ossining is part of
14 Westchester County, is it not?
15 A. Yes.
16 Q. Do you know if in 1992 there were
17 reported cases of Lyme disease from
18 Ossining?
19 A. Specifically, no.
20 Q. You don't have that knowledge?
21 A. No.
22 Q. The same question with regard to
23 Croton, do you know if there were reported
24 cases of Lyme disease from Croton, New
25 York?
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2 A. Specifically, no.
3 Q. You said that the Lyme disease
4 can have a different appearance other than
5 the classic bull's eye; is that correct?
6 A. That is correct.
7 Q. What other appearance were you
8 aware of with regard to the Lyme disease
9 rash in the summer of 1992?
10 A. Lyme disease could probably
11 present as any erythematous rash.
12 Q. How does that type of rash
13 present itself?
14 A. It may be in one large blotch.
15 It may be in one large blotch.
16 Q. Looking like what?
17 A. Like a large welt, a flat welt.
18 Q. Anything else?
19 A. Off the top of my head, no.
20 Q. When a physician in the community
21 in which you practiced in the summer of
22 1992 was going to test for Lyme disease,
23 what test or tests would routinely be done
24 on the first visit, if any?
25 MR. BILLIG: You asked him
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2 this already. You asked him about tests
3 that were available and he listed several,
4 including the Western Blot and the thing in
5 front of you.
6 MR. MAURER: I understand
7 that. I asked him what test or tests he
8 knew about.
9 Now I am asking him what test, if
10 any, would be done on the first visit.
11 MR. IACONIS: By him?
12 MR. MAURER: By physicians
13 within the community in which he practiced
14 who were testing for Lyme disease, what was
15 his understanding of what would be done on
16 the first visit, if any.
17 BY MR. MAURER:
18 Q. In other words, if somebody
19 complained of, to use an analogy for the
20 moment, a shooting pain in their palm would
21 you do an MRI.
22 There may be lots of tests, but
23 what would you do on first visit.
24 MR. IACONIS: What he would do
25 or what someone else would do.
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2 MR. MAURER: He can tell me
3 what he would do or someone within the
4 community in which he practiced.
5 MR. BILLIG: The problem that
6 I am having with the question is that it
7 assumes a myriad of facts that a conclusion
8 was made to test.
9 MR. MAURER: Based upon what
10 he observed and what he learned and what he
11 knew.
12 MR. BILLIG: But all of that
13 might change the parameters.
14 MR. MAURER: He can tell me
15 that if it would. I don't expect a
16 problem.
17 MR. IACONIS: I will object to
18 the form of the question.
19 MR. BILLIG: Note mine. If
20 you understand it, you can answer it.
21 THE WITNESS: If I --
22 BY MR. MAURER:
23 Q. If you were going to test a
24 patient for Lyme disease, what would be the
25 first test or tests you would have
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2 performed in the summer of 1992?
3 A. In 1992 there were various
4 laboratory tests that were used in-house in
5 one's private office that were kind of
6 accepted as tests that one would do.
7 There are also laboratory tests
8 that outside laboratories do,
9 specifically --
10 Q. I would like to know what
11 specific test you would have done in the
12 summer of 1992, what specific tests to test
13 for Lyme disease.
14 A. There happens to be one in front
15 of you. I don't remember the year that
16 they were "in vogue," but we used to use
17 those tests.
18 Q. What is the name of the test, is
19 what I am driving at?
20 A. I don't remember.
21 Q. What kind of test was it?
22 A. Okay. Do you think I can have my
23 chart so that I can tell you?
24 Q. If you cannot answer it without
25 the chart, by all means.
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2 MR. MAURER: Let's mark the
3 doctor's entire chart with all loose
4 document contained therein as Plaintiffs'
5 Exhibit No. 1 and then we can mark
6 individual documents.
7 (Plaintiffs' Deposition Exhibit 1
8 was marked for identification. Exhibit
9 retained by counsel.)
10 Q. Doctor, Plaintiffs
11 Exhibit No. 1 marked for identification is
12 your complete chart containing any records,
13 reports, correspondence pertaining to
14 Ms. Foley?
15 A. That is correct.
16 Q. Does it also contain your billing
17 records?
18 A. It does not contain them.
19 Q. Let me know when you are ready,
20 doctor.
21 A. Thank you.
22 MR. BILLIG: What is the
23 outstanding question?
24 MR. MAURER: What is the name
25 of the test that he would have performed,
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2 the first test he would have performed,
3 test or tests, in the summer of 1992 with
4 regard to Lyme disease.
5 A. After consulting my records, I
6 would have performed in 1992 a blood test
7 sent to an outside laboratory to determine
8 an antibody level to Lyme disease.
9 Q. What is the name of that blood
10 test, do you know without checking your
11 chart?
12 A. No.
13 Q. Okay. Please check.
14 A. I don't know what the laboratory,
15 Roche Laboratory called it. A Lyme disease
16 quantitative test for antibodies to Lyme
17 disease.
18 Q. You are looking at a specific
19 document, doctor. May I see it it,
20 please?
21 A. Sure.
22 Q. The test that you are referring
23 to, was there a cutoff for what would be
24 considered positive, as you know it?
25 A. I would assume so. May I have
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2 that back and I will tell you.
3 Q. You don't know without checking?
4 MR. BILLIG: That's why he
5 asked for it back.
6 Q. Is that right?
7 A. I am sorry.
8 Q. Do you not know without checking
9 the document what the cutoff was?
10 A. Without checking the document,
11 no.
12 Q. Okay. Please look.
13 A. Anything under one was normal.
14 MR. MAURER: Mark this
15 document as Plaintiff's Exhibit No. 1A. It
16 is a Lyme test from Roche Biomedical
17 Laboratory which indicates date of specimen
18 3/24/89.
19 (Plaintiffs' Deposition Exhibit
20 1A was marked for identification. Exhibit
21 retained by counsel.)
22 BY MR. MAURER:
23 Q. Is there any other test other
24 than the one which you have identified
25 which you would have done, initially done,
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2 in the summer of 1992 for Lyme disease?
3 A. Just the test that we would send
4 out to the laboratories, local
5 laboratories, MiniPath or Roche.
6 Q. What is the name of the test?
7 A. Similar to the one that we are
8 talking about here.
9 Q. Can you give me a name of what it
10 would be called, what kind of test?
11 A. I guess the laboratory just
12 called it a Lyme disease test.
13 (Witness and counsel confer.)
14 Q. When did Mrs. Foley first come
15 under your care, doctor?
16 A. Sometime in 1975.
17 Q. Let me go back to what I was
18 asking you about a moment ago. If the test
19 that you identified a moment ago which we
20 marked for identification as Plaintiffs'
21 Exhibit 1A came back positive, would you
22 have routinely done any other Lyme test
23 back in the summer of 1992 when you got the
24 test result?
25 A. Probably not.
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2 Q. Is there a reason that you can
3 recall why you probably would not have done
4 so?
5 A. If the clinical impression was
6 that of Lyme disease, and the blood test
7 was positive, that would have confirmed my
8 feeling that the patient had Lyme disease.
9 Q. Were there any exceptions to that
10 rule that you just, and I am calling it a
11 rule even though you did not say it, that
12 standard practice, did you have any
13 exceptions to that practice back in 1992,
14 or is that the practice that you always
15 would have followed at that time?
16 A. I didn't say always. I said
17 probably.
18 Q. Under what circumstances would
19 you have not followed that practice in the
20 summer of 1992?
21 A. If the test were positive I
22 probably would not have done anything
23 else. If the test at the time were
24 positive, I would not have done anything
25 else.
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2 Q. Doctor, you said you started
3 treating Mrs. Foley in 1975; is that
4 correct?
5 A. Specifically 12/9/75.
6 Q. When was the first time that
7 you --
8 (Witness and counsel confer.)
9 BY MR. MAURER:
10 Q. Did you hear what I said,
11 doctor?
12 A. Yes.
13 Q. When was the first time that you
14 ever had a Lyme test performed on
15 Mrs. Foley?
16 A. If I may look at my notes.
17 Q. Take your time. Just tell me
18 what you are looking at for the record.
19 A. I am looking through her record
20 to see when I did a Lyme test.
21 Q. You are looking at your office
22 notes?
23 A. Office notes, that is correct.
24 Q. And those office notes are kind
25 of a yellowish paper?
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2 A. They are a kind of a yellowish
3 paper made by HistaCount Corporation.
4 I think the first time that
5 Elizabeth was checked was 4/26/86.
6 Q. What was done on that date?
7 A. A blood test was sent off to
8 Stonybrook Laboratory, State University of
9 New York, Stonybrook.
10 Q. What type of blood test?
11 A. A blood test for Lyme serology.
12 Q. Why was that test performed?
13 A. The test was performed because
14 the patient was seen with a history of
15 previous tick bite and complained of a red
16 and tender area around the area of the tick
17 bite.
18 Q. Did you see the tick on
19 Mrs. Foley?
20 A. I didn't take care of the patient
21 at the time.
22 Q. Who did?
23 A. A physician's assistant.
24 Q. In 1986 was it your practice to
25 have a physician's assistant perform tests
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2 that would involve taking blood and making
3 a decision whether or not to do a Lyme test
4 on their own?
5 MR. BILLIG: Objection to the
6 form of the question. It is assuming that
7 he testified that -- that he testified to
8 facts framed in your question.
9 MR. MAURER: I am asking him
10 if it was his practice.
11 MR. BILLIG: Practice for?
12 MR. MAURER: To have the
13 physician's assistant make the
14 determination on their own to do a Lyme
15 test which involved taking blood and
16 sending it out to a lab.
17 MR. BILLIG: In this case, the
18 physician's assistant did that.
19 BY MR. MAURER:
20 Q. Did the physician's assistant do
21 that?
22 A. Yes, the physician's assistant
23 did that.
24 Q. Who took the blood?
25 A. The nurse.
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2 Q. Was there any doctor involved in
3 that practice?
4 A. Probably not.
5 Q. Was it your practice to consult
6 with the physician's assistant before he or
7 she wanted to do the test that he wanted to
8 do back in 1986?
9 A. New York State -- there is
10 nothing illegal about it, and my policy was
11 to discuss the patients at the end of the
12 day unless the physician's assistant had a
13 problem in managing a specific problem.
14 Q. Did you receive a test report
15 back from Stonybrook Lab?
16 A. Yes.
17 Q. Can you locate it in your chart,
18 please.
19 What was the result of the test?
20 A. The result was nonreactive.
21 Q. Which means and it was
22 interpreted as negative for Lyme disease?
23 A. That is correct.
24 MR. MAURER: Let's mark the
25 report as Plaintiffs' Exhibit 1B.
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2 (Plaintiffs' Deposition Exhibit
3 1B was marked for identification. Exhibit
4 retained by counsel.)
5 MR. MAURER: I would ask
6 defense counsel for the defendant doctors
7 to provide me with a complete copy of all
8 of Exhibit No. 1 marked for identification
9 as soon after the completion of today's
10 deposition as possible, because I think
11 that there are a lot of documents in the
12 chart that I don't have.
13 MR. BILLIG: Okay. Do you
14 have your copy with you?
15 MR. MAURER: Off the record.
16 (Discussion off the record.)
17 MR. MAURER: I have about
18 eight pieces of paper which I got from my
19 client, so I would ask for a complete set.
20 MR. BILLIG: Okay.
21 BY MR. MAURER:
22 Q. Prior to 4/26/86, to your
23 knowledge, did Mrs. Foley ever present
24 herself with any history or signs or
25 symptoms which were considered by your
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2 office to be possibly related to Lyme
3 disease, or is 4/26/86 the first time?
4 A. I believe 4/26/86 was the first
5 time that we thought that Elizabeth may
6 have had Lyme disease.
7 Q. Based upon the negative
8 Stonybrook test marked for identification
9 as Exhibit 1B, did your office conclude
10 that she did not have Lyme disease?
11 A. No.
12 Q. Did you treat her for Lyme
13 disease on that occasion in 1986?
14 A. She was treated appropriately for
15 Lyme disease.
16 Q. How did you treat her?
17 A. She was given two weeks -- three
18 weeks of doxycycline.
19 I am sorry. She was given at
20 that time -- I apologize -- at that time
21 tetracycline was thought to be the drug to
22 be used. She was given tetracycline.
23 Q. Who prescribed the tetracycline
24 for Mrs. Foley?
25 A. The physician's assistant.
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2 Q. Does your office chart indicate
3 when Mrs. Foley became aware of the tick
4 bite in 1986?
5 A. Mrs. Foley -- Elizabeth stated
6 that on 4/26 she stated that she had been
7 bitten by two ticks two weeks prior to
8 that, so that would make it approximately
9 April 12, 1986.
10 Q. Before the tetracycline was
11 prescribed by your physician's assistant,
12 is the name indicated in the chart who it
13 was?
14 A. I believe it was Roger Shupak.
15 Q. Before Mr. Shupak, if that is who
16 it was, who prescribed the tetracycline,
17 did he consult with a physician in your
18 office, to your knowledge?
19 A. No. That was not the standard
20 procedure.
21 Q. Doctor, just a general statement
22 for you to understand with my questions.
23 If I ask you if something was done, I am
24 not limiting it to what the general
25 procedure was. I am asking for specifics.
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2 Was something done or not done?
3 A. In this specific case?
4 Q. That's right.
5 MR. BILLIG: Do you have
6 knowledge as to whether it was done in this
7 case?
8 A. I am sorry. I don't recall at
9 all whether he mentioned it at all.
10 Q. Would it have been the practice
11 in your office to note if such a
12 consultation took place place between the
13 registered physician's assistant and a
14 doctor in the office?
15 MR. BILLIG: You mean note in
16 the chart.
17 MR. MAURER: Correct, or any
18 other such notation.
19 A. I guess it depended upon what the
20 outcome of the discussion was.
21 Q. How many different registered
22 physician assistants were working for your
23 office back in 1986?
24 A. Just one.
25 Q. Mr. Shupak?
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2 A. Yes.
3 Q. So you are comfortable in saying
4 that it must have been Mr. Shupak who
5 prescribed the tetracycline because before
6 I thought you were uncertain. That's why I
7 am asking.
8 A. Prior to Mr. Shupak there was
9 another physician's assistant and they
10 both -- I had three physician's assistants
11 and each one worked about five years.
12 I think the last one must have
13 fit that date of Mr. Shupak.
14 Q. Mr. Shupak worked until when in
15 your office, what year did he stop?
16 A. 1991.
17 Q. So roughly the mid '80s to 1991?
18 A. Correct.
19 Q. Did you have a registered
20 physician's assistant after Mr. Shupak
21 left?
22 A. No.
23 Q. Was there any reason why you did
24 not replace Mr. Shupak with another
25 registered physician's assistant?
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2 MR. BILLIG: Note my objection
3 to the question. You may answer.
4 A. He was replaced by a physician.
5 Q. Was that Dr. Daniel?
6 A. Right.
7 Q. Prior to Dr. Daniels being there
8 was just yourself and the registered
9 physician's assistant and nurses and
10 administrative staff?
11 A. Correct.
12 Q. Doctor, when was the next time
13 that your office tested Mrs. Foley for Lyme
14 disease?
15 A. The next time I believe was
16 3/24/89.
17 Q. Do you see an entry in your chart
18 on that date?
19 A. Yes.
20 Q. What information is in that entry
21 that you are relying upon to respond to the
22 question?
23 A. Elizabeth came in complaining of
24 pain in her shoulder and in her heel as
25 well as pain in her fifth finger.
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2 Q. Which hand?
3 A. Left hand, left shoulder, right
4 heel -- I am sorry, the right finger, right
5 fifth finger.
6 Q. Left foot, heel?
7 A. Right heel, left shoulder.
8 Q. What else does it say?
9 A. As well as multiple raised
10 lesions on the chest and erythema at the
11 fold of her right axilla.
12 Q. Where would the right axilla be,
13 in the layman's terms?
14 A. The right armpit.
15 Q. Is there a description of the
16 erythema at the right armpit beyond what
17 you read?
18 A. Right axilla with erythema at the
19 fold, meaning that right in the anterior
20 portion of her armpit there was a reddish
21 area. The patient stated that it comes and
22 goes. Body powder helped it.
23 Q. Are there any other notations on
24 that date?
25 A. There are many notations.
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2 MR. BILLIG: You mean any
3 other relating to the Lyme test?
4 MR. MAURER: Yes.
5 A. None.
6 MR. MAURER: Or the reason for
7 the Lyme test.
8 A. Okay.
9 MR. BILLIG: Fine.
10 A. Thank you.
11 Other than the fact that there is
12 a note saying that the patient had a tick
13 bite last summer on her neck and chest,
14 which would make it the summer of 1988.
15 Q. That is under the 3/24/89 entry
16 in the chart?
17 A. That is correct. My notation on
18 the next page -- I am sorry. Right pinky
19 slightly swollen.
20 More or less that's it.
21 Q. Who saw Mrs. Foley on 3/24/89?
22 A. She was seen in tandem by the
23 physician's assistant and myself.
24 Q. So that would have been
25 Mr. Shupak?
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2 A. That is correct.
3 Q. Did you get a test report back?
4 A. I did.
5 Q. Was there one test or more than
6 one test?
7 A. I only have one test. That was
8 the one that was sent to Roche Laboratory.
9 Q. Is that --
10 A. Exhibit 1A.
11 Q. Okay. May I see it, please?
12 A. Sure.
13 (Witness and counsel confer.)
14 Q. And this test report was
15 interpreted as negative?
16 A. That is correct.
17 Q. What was the actual numerical
18 test result reported on Exhibit 1A which is
19 what was interpreted as negative?
20 A. I think there is a result that
21 just says negative.
22 Q. Does it not tell you what the
23 number value was that was assigned to the
24 test result?
25 A. The only thing I see is the
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2 result was negative, limits were negative
3 means less than one but it doesn't give you
4 anything more specific than that.
5 Q. You said one is the cutoff value
6 for positive or negative?
7 A. For this laboratory for this
8 test.
9 Q. May I see Exhibit 1A again,
10 please?
11 A. Yes.
12 (Witness and counsel confer.)
13 BY MR. MAURER:
14 Q. Doctor, did your office provide
15 Mrs. Foley with any treatment for Lyme
16 disease on or after 3/24/89?
17 A. Yes.
18 Q. What did you prescribe or what
19 was prescribed by your office?
20 A. When?
21 Q. For treatment of the condition
22 for which she came in to you on 3/24/89?
23 A. I'm sorry. I didn't treat her on
24 3/24/89.
25 MR. BILLIG: The question was
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2 did you provide any treatment after
3 3/24/89.
4 MR. MAURER: I will rephrase
5 the question.
6 Q. Did you treat Mrs. Foley for Lyme
7 disease back in 1989?
8 A. In 1989, I do not believe I
9 treated Elizabeth in 1989 for Lyme
10 disease.
11 Q. Do you recall why you decided not
12 to treat her for Lyme disease at that time?
13 A. I am sorry. Are you specifically
14 talking about the March 24 visit? Maybe I
15 am a bit hung up.
16 Q. That date or subsequent to that
17 date as a follow-up visit.
18 MR. BILLIG: Let's first deal
19 with March so that the record is clear.
20 THE WITNESS: I am confused.
21 MR. BILLIG: Ask him what did
22 he do based upon the test result of
23 3/24/89.
24 BY MR. MAURER:
25 Q. Did you treat Mrs. Foley for Lyme
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2 disease in March of 1989?
3 A. No.
4 Q. Did you treat her for Lyme
5 disease in April of 1989?
6 A. No.
7 Q. Did you treat her for Lyme
8 disease at any time in 1989?
9 A. No. Specifically I answered no.
10 Q. Okay. Why did you decide not to
11 treat Mrs. Foley for Lyme disease on or
12 after 3/24/89 in the year 1989?
13 MR. BILLIG: The problem that
14 I have with the question is that treatment
15 could include further diagnostic tests
16 which you have not asked him about yet.
17 MR. MAURER: Okay.
18 Q. Did you perform any other
19 diagnostic tests on Mrs. Foley in 1989?
20 A. Yes.
21 MR. BILLIG: With respect to
22 Lyme disease?
23 MR. MAURER: Yes.
24 A. Yes.
25 Q. When?
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2 A. In September of 1989.
3 Q. Why did you do another Lyme test
4 in September of 1989? And please tell me
5 the date in your chart that you are looking
6 at when you find it.
7 (Witness and counsel confer.)
8 THE WITNESS: The confusion
9 that I have, sir, is that you asked me --
10 we were talking about a visit in 1989,
11 March 24. Then you asked if I ever treated
12 Elizabeth after 1989 -- I am sorry.
13 BY MR. MAURER:
14 Q. At any time in 1989.
15 MR. BILLIG: On or after.
16 Q. On or after 3/24/89 but limited
17 to 1989.
18 MR. BILLIG: Okay.
19 A. I did not treat her for Lyme
20 disease at all in 1989.
21 Q. Which is what you said before.
22 A. Okay. I was just confused in
23 that you said at any time on or after.
24 MR. BILLIG: It is clear now.
25 Q. You said that you did a third
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2 Lyme test in September of 1989 and you were
3 looking for that in your chart.
4 A. That is correct. September 27,
5 1989 the patient had -- Elizabeth had said
6 she had a -- reported that she -- she came
7 in for a sore throat but at the same time
8 reported that approximately two to four
9 weeks before she had insect bites and a
10 rash on her left arm and chest, and that is
11 the reason why a Lyme disease test was
12 taken then.
13 Q. Did you see her on that occasion
14 or was she seen by Mr. Shupak?
15 A. She was seen by Mr. Shupak.
16 Q. Do you have a test report?
17 A. Yes, I do.
18 Q. Could you produce it please so
19 that we can mark it as Exhibit 1C.
20 (Plaintiffs' Deposition Exhibit
21 1C was marked for identification. Exhibit
22 retained by counsel.)
23 (Witness and counsel confer.)
24 BY MR. MAURER:
25 Q. This test was interpreted as
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2 negative; is that correct?
3 A. That is correct.
4 Q. Who wrote the letters NEG
5 underlined on the report?
6 A. At that time a laboratory
7 technician who I don't remember.
8 Q. In your office or from the lab
9 where the test was done?
10 A. In my office. The test was an
11 in-house test.
12 Q. Were the other tests sent out to
13 Roche Lab or were they done in-house?
14 A. The original test of 1986 was
15 sent to Stonybrook. The test of March 1989
16 was sent to Roche Laboratory. This test
17 was done in-house, and I don't remember
18 what type of test was done.
19 Q. Do the records indicate the
20 nature of the Lyme disease test?
21 A. No.
22 Q. Just to review, you said no
23 treatment was given by your office to
24 Mrs. Foley in 1989 before, so would I be
25 correct that you did not treat her on or
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2 after 9/27/89 when she gave you the history
3 that you told me about?
4 MR. BILLIG: Note my objection
5 in terms of treatment. You are defining it
6 as no further testing.
7 MR. MAURER: I am not defining
8 it as no further testing.
9 BY MR. MAURER:
10 Q. What is your definition of
11 treatment?
12 MR. BILLIG: You mean in the
13 world of medicine?
14 MR. MAURER: His definition of
15 treatment, so that we have a clear
16 understanding.
17 MR. BILLIG: Would that not
18 depend on the patient?
19 MR. MAURER: No, not at all.
20 Doctors can define what the word treatment
21 means.
22 THE WITNESS: Specifically the
23 patient was not treated for Lyme disease
24 throughout the year 1989. However, she
25 received treatment in October for another
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2 disorder which was -- which would have been
3 adequate treatment for Lyme disease had she
4 had it but she was not treated specifically
5 for Lyme disease.
6 BY MR. MAURER:
7 Q. What was the treatment she got
8 for some other disorder which you said
9 would have been adequate for the treatment
10 of Lyme disease?
11 A. In October of 1989 Elizabeth was
12 treated for bronchitis and she was given
13 approximately two and a half weeks of
14 doxycycline.
15 Q. What is your general definition
16 of medical treatment the way you would
17 define it? And I am not limiting it to any
18 specific disorder. I want to have a
19 working definition so that I understand
20 your testimony here today.
21 A. Medical treatment in general
22 would be the diagnosing of an illness by
23 clinical impression, by laboratory
24 assistance, and the treatment or the giving
25 thereof of medication and anything else
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2 that would help the patient.
3 Q. Such as physical therapy if
4 appropriate?
5 A. A splint.
6 Q. Did Mrs. Foley come into your
7 office at any other time in 1989 where Lyme
8 disease was considered as a possible
9 diagnosis?
10 A. No.
11 Q. Did Mrs. Foley come into your
12 office in 1990 at any time when Lyme
13 disease was considered as a possible
14 diagnosis?
15 A. Yes.
16 Q. When?
17 A. In November 17, 1990.
18 Q. What history did she provide,
19 according to your office chart?
20 A. There was a blood test that was
21 taken on 11/17/90 when Elizabeth had her
22 annual physical.
23 Q. The blood test was for Lyme
24 disease?
25 A. A blood test was taken when she
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2 had her annual physical.
3 Q. Was it a blood test for Lyme
4 disease?
5 A. Yes. I am sorry.
6 Q. Was it an in-house blood test
7 done in your offices or was it sent outside
8 to an outside lab?
9 A. It was an in-house test called an
10 ImmunoDOT. That was read as positive.
11 Q. Did Mrs. Foley give you any
12 information when she came in on
13 November 17, 1990 which was considered in
14 making the decision to do the Lyme disease
15 test at that time?
16 A. The only entry that I see is that
17 Elizabeth was concerned about some
18 osteoarthritis of her right fifth finger
19 which had been bothering her on and off for
20 a few years. And other than that, I don't
21 know why the test was done.
22 Q. Who ordered the test?
23 A. I did.
24 Q. How much did the test cost; what
25 was the charge to Mrs. Foley? Is it in
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2 your chart?
3 A. No.
4 Q. Do you recall approximately what
5 it would have been?
6 A. I have no idea.
7 Q. When the test was interpreted by
8 your own lab technician as positive for
9 Lyme disease, what, if anything, did you do
10 in the way of treatment for Lyme disease?
11 A. Elizabeth was given three weeks
12 of doxycycline.
13 Q. Specifically for Lyme disease?
14 A. Specifically.
15 Q. When was that prescription given
16 to Mrs. Foley?
17 A. On 11/17/1990.
18 Q. The test result was available the
19 same day of the annual physical?
20 A. That is correct.
21 Q. Did you provide any other
22 treatment for Lyme disease in 1990 to
23 Mrs. Foley?
24 A. No.
25 Q. Earlier you defined treatment as
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2 including tests. I will ask it
3 specifically: Did you perform any other
4 tests which were done in-house in your own
5 lab or sent to an outside lab for Lyme
6 disease after the 11/17/90 in-house test
7 was interpreted as positive for Lyme
8 disease?
9 A. I did not do any other test.
10 Q. Why did you prescribe doxycycline
11 for Mrs. Foley on 11/17/90?
12 A. Number one, I don't have -- I
13 don't have in my notes why the blood test
14 was taken.
15 Number two, I don't remember.
16 Q. Is there anything indicated in
17 the chart for Mrs. Foley marked for
18 identification as Exhibit No. 1 which would
19 assist you in remembering why you treated
20 her with doxycycline for three weeks for
21 Lyme disease on 11/17/90?
22 A. There is nothing in the chart
23 that would make me suggest to treat her or
24 not treat her.
25 Q. If Mrs. Foley had either provided
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2 a history of some of the things that you
3 told me earlier you would consider as part
4 of your clinical impression, other than the
5 fifth finger joint pain, would you have as
6 part of your normal office practice have
7 noted it in your chart on 11/17/90?
8 MR. BILLIG: I don't
9 understand the question.
10 MR. MAURER: The doctor
11 testified that in reaching a clinical
12 impression with regard to making a
13 diagnosis of disease that he would consider
14 the area where the patient lived, such as
15 Yorktown; joint problems, neurologic
16 symptoms, fever, history of a recent tick
17 bite, severe headache, rash.
18 Q. What I am asking is, had
19 Mrs. Foley indicated any of those things to
20 you on 11/17/9, would it have been your
21 standard practice to note them in the
22 chart?
23 A. Ordinarily, yes.
24 (Witness and counsel confer.)
25 MR. BILLIG: Let the record
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2 reflect that I want to talk with him
3 outside.
4 MR. MAURER: We will adjourn
5 for lunch at this time.
6 (Luncheon recess taken at 12:20
7 p.m. and resumed at 1:35 p.m.)
8 MR. BILLIG: Did you finish
9 your answer.
10 THE WITNESS: No.
11 BY MR. MAURER:
12 Q. If there is something that you
13 would like to add to a previous response
14 prior to the luncheon recess, go ahead.
15 A. The very end of that question, I
16 just would like to state that I ordinarily
17 would not have started anybody on an
18 antibiotic, because after a positive blood
19 test, that I -- it would have had to have
20 something else which I obviously did not
21 write in my chart, and -- that's it.
22 She had to have some history of
23 either a tick bite or had something wrong
24 with her for me to have treated her with
25 three weeks of an antibiotic.
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2 Q. Did you do any follow-up testing
3 for Lyme disease after 11/17/90?
4 A. No.
5 Q. In the year of 1990?
6 A. No.
7 Q. Did you do any other treatment
8 for Lyme disease in 1990?
9 A. No.
10 Q. Just to bring us up to date, the
11 first Lyme test I had was back on April 26,
12 1986 that went to Stonybrook.
13 The second one was dated 3/24/89,
14 Roche Labs.
15 The third one was 9/27/89 which
16 was done in-house.
17 The fourth one was 11/17/90
18 in-house.
19 Would I be correct that you did
20 not do a repeat Lyme test after you got the
21 result on each of those tests?
22 A. Correct.
23 Q. So that brings us up to 1991?
24 A. Yes.
25 Q. Did Mrs. Foley come to you in
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2 1991 with any symptoms that caused you to
3 treat her for Lyme disease?
4 A. No.
5 Q. Just to go back to what you said
6 after we resumed from the luncheon recess,
7 it is your standard practice not to treat
8 patients with positive Lyme tests until
9 they have some other criteria that you have
10 referred to earlier in your testimony; is
11 that correct?
12 MR. BILLIG: Note my objection
13 to the form of the question in that you are
14 characterizing something that he has
15 already testified to.
16 By your own question, if he
17 already testified to it then it is asked
18 and answered. I am not sure that your
19 characterization is correct.
20 Q. Let's return to what you said so
21 that I am sure that I have a clear
22 understanding of it.
23 You said something about there
24 would have to be something else that you
25 were made aware of which was not noted in
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2 your chart which would have caused you to
3 treat her for Lyme disease besides the
4 positive test, is that right?
5 And if it is not what you said,
6 then please tell me.
7 MR. BILLIG: In 1990?
8 MR. MAURER: Right.
9 THE WITNESS: Can I speak to
10 you outside?
11 MR. MAURER: I would prefer
12 you not consult with counsel prior to
13 answering the question. You have the right
14 to do so, but I would like to have an
15 answer without consultation with counsel.
16 MR. BILLIG: That's okay. He
17 wants to talk to me outside. He is
18 entitled. The record can note that.
19 (Witness and counsel confer
20 outside the deposition room at this time.)
21 BY MR. MAURER:
22 Q. Are you prepared to answer the
23 question?
24 MR. BILLIG: Read the
25 question, please.
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2 (The pending question was read.)
3 THE WITNESS: There ordinarily
4 would have to be some other circumstance
5 for me to treat a patient other than just a
6 positive blood test.
7 BY MR. MAURER:
8 Q. Such as what?
9 A. Some history that would make me
10 feel comfortable that the patient had been
11 exposed to Lyme disease, and --
12 Q. Such as being in an area that is
13 endemic for ticks to carry the bacteria?
14 A. No.
15 Q. Such as what?
16 A. Bitten by a tick, number one;
17 having some sort of symptom that would go
18 along with Lyme disease, number two; and
19 other extenuating circumstances.
20 Q. What symptoms would go along with
21 Lyme disease aside from what you previously
22 told me about today?
23 MR. BILLIG: Note my objection
24 to the form of the question. You want to
25 ask him does he now, after a break and in
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2 further contemplation several hours later
3 know of any additional symptoms, you can
4 ask him that, fine.
5 Q. You can answer the question.
6 A. Off the top of my head I can't
7 think of any others right now.
8 Q. A fever would be one of the
9 things you might consider; is that right?
10 A. I might consider, correct.
11 Q. If you have a positive test and
12 fever you might consider treating a
13 patient; is that right?
14 A. Correct.
15 Q. What you added when we resumed
16 following the luncheon recess to your
17 response, that additional information came
18 to you only after speaking with your
19 counsel, did it not?
20 MR. BILLIG: Objection to the
21 form of the question. Don't answer that
22 question.
23 ** COUNSEL DIRECTS WITNESS NOT TO ANSWER
24 Q. By the way, doctor, have you read
25 the transcripts of the depositions of
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2 Mr. and Mrs. Foley in this case before
3 coming here today?
4 A. No.
5 Q. What documents, if any, did you
6 review in preparation for your deposition
7 today?
8 A. The chart that I have in front of
9 me and the hospital records.
10 Q. All of the hospital records
11 pertaining to Mrs. Foley?
12 A. Up until just during the years
13 that I took care of her.
14 Q. So that would be through 1992?
15 A. That is correct.
16 MR. BILLIG: Is it through '92
17 or up through '91?
18 THE WITNESS: '92.
19 BY MR. MAURER:
20 Q. That would bring you to October
21 of 1992; is that right?
22 A. That is correct.
23 Q. I don't recall if I asked you
24 this.
25 Did you provide any treatment for
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2 Lyme disease for Mrs. Foley in 1991?
3 A. You asked me and I said no.
4 Q. Same question in 1992.
5 A. Yes.
6 MR. IACONIS: Yes, what? Was
7 that a question?
8 MR. BILLIG: In 1992 did he
9 provide treatment for Lyme disease, and the
10 witness answered.
11 BY MR. MAURER:
12 Q. Doctor, did there come a point in
13 in time in July of 1992 when Mrs. Foley
14 contacted you and advised you that she was
15 ill?
16 A. Yes, sir.
17 Q. When was that?
18 A. July 28, 1992.
19 Q. What was the nature of that
20 contact; was it an office visit or
21 telephone call?
22 A. Office visit.
23 Q. Did you receive a history from
24 Mrs. Foley at that time?
25 A. Correct.
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2 Q. What was the history she
3 provided?
4 A. Mrs. Foley had complained of
5 three days of fever, nausea and malaise.
6 She had no appetite. She had diarrhea for
7 two days. She had explosive diarrhea
8 subsequent to eating in restaurants,
9 according to the history, and she felt very
10 weak.
11 Q. Did she tell you how high her
12 temperature had been?
13 A. She told me that her fever had
14 been up to 101.3, and she had a registered
15 temperature of 101.8 in my office.
16 Q. Did you consider 101.8 to be a
17 significant temperature for Mrs. Foley in
18 your office?
19 A. Yes.
20 Q. Is that the complete history
21 noted in your chart for that day?
22 A. Yes.
23 Q. Did you perform an examination?
24 A. I did.
25 Q. Do you have any findings noted in
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2 your chart?
3 A. She had a negative stool which
4 meant that it was tested for microscopic
5 blood.
6 Q. In other words, there was no
7 blood found in the stool?
8 A. That is correct.
9 Q. Anything else?
10 A. No.
11 Q. What treatment did you provide,
12 if any, on that occasion?
13 A. Her stool was sent off for
14 evaluation and she was to be sent home on
15 Tylenol and Gatorade, fluid replacement.
16 Q. Is there anything else noted in
17 your chart for that visit?
18 A. No, there is not.
19 Q. What is the next thing that your
20 chart indicates happened with regard to
21 your treatment of Mrs. Foley?
22 A. On the next day there was a
23 telephone call saying that she was cold and
24 shivering the evening prior.
25 Q. You said a telephone call?
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2 A. Yes. We had a telephone
3 conversation in which she informed us that
4 she was cold and shivering the evening
5 before on 7/28.
6 However, her temperature on 7/29
7 was 99.6. She was informed to take her
8 stool or somebody to take her stool to the
9 hospital and to continue on Tylenol.
10 Q. That's Northern Westchester
11 Medical Center?
12 A. Northern Westchester Medical
13 Center.
14 Q. Anything else?
15 A. And she was to come in the next
16 day.
17 Q. What is the next thing that your
18 chart indicates happened?
19 A. On 7/30/92 the patient still had
20 explosive diarrhea.
21 Q. This is the office visit now?
22 A. That is correct.
23 She had the shakes. Her
24 temperature had been between 101 and 103.
25 My notes indicate that she was
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2 dehydrated, and I was sending her to the
3 hospital.
4 Q. Who admitted her to the
5 hospital?
6 A. I did.
7 Q. That was at Northern Westchester
8 Medical Center?
9 A. Correct.
10 Q. Did you have a working diagnosis
11 which you noted in your chart on 7/28, 7/29
12 or 7/30/92?
13 A. My working diagnosis was
14 infectious enteritis.
15 Q. Where did you note that?
16 A. On 7/28/92.
17 Q. What is infectious enteritis?
18 A. Enteritis is a term used to
19 describe the intestinal tract. And
20 infectious means that there was some
21 infectious element such as a virus or
22 bacteria that was causing her to have an
23 acute episode of diarrhea.
24 Q. What was the diagnosis you
25 indicated on the hospital chart when you
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2 admitted Mrs. Foley on July 30, 1992?
3 Would you like to look at the
4 hospital chart?
5 A. Okay. But I have -- I believe I
6 have a history and copy of my chart, of
7 that and the file.
8 My impression at that time was
9 that patient had infectious enteritis as
10 well as possible cholangitis as well as
11 dehydration.
12 MR. IACONIS: Off the record
13 please.
14 (Discussion off the record.)
15 BY MR. MAURER:
16 Q. Are you ready, doctor?
17 A. Yes, sir.
18 Q. Have you had a chance to review
19 your chart so that you can answer the last
20 question?
21 A. I thought I answered the last
22 question. I said dehydration.
23 Q. Right.
24 A. Cholangitis and infectious
25 enteritis.
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2 Q. Please summarize in chronological
3 order what treatment was rendered to
4 Mrs. Foley, as far as you know, while in
5 the hospital.
6 MR. IACONIS: During the 7/30
7 admission?
8 MR. MAURER: Yes.
9 MR. BILLIG: Note my objection
10 to form. I mean, when you say summarize,
11 you want him to summarize. It is just very
12 broad.
13 MR. IACONIS: There is a
14 discharge summary, I am sure, for that
15 admission.
16 If he is going to review the
17 chart then we should have it marked first,
18 also note my objection.
19 MR. MAURER: Let's mark it as
20 Plaintiffs' Exhibit No. 2. That's the
21 Northern Westchester Hospital Center
22 hospital record for 7/30/92.
23 (Plaintiffs' Deposition Exhibit 2
24 was marked for identification. Exhibit
25 retained by counsel.)
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2 BY MR. MAURER:
3 Q. Doctor, what did you do to
4 provide treatment for Mrs. Foley during her
5 7/30/92 hospital admission?
6 A. I admitted the patient and
7 initiated various tests and various
8 treatments to a person who was quite ill at
9 the time.
10 Q. What tests?
11 A. Stool cultures, blood tests,
12 blood cultures, hydrating fluids.
13 Q. I said tests.
14 A. Specifically blood cultures,
15 various blood tests.
16 Q. What blood tests?
17 A. A CBC, an SMAC, sed rate serum
18 amylase, urinalysis, ultrasound of her
19 abdomen, x-rays of her abdomen, and the
20 cultures had already been ordered the
21 previous day of her stool.
22 Q. Is that everything, doctor?
23 A. Yes, sir.
24 Q. Doctor, did you go away on
25 vacation during Mrs. Foley's admission to
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2 the hospital?
3 A. Yes, I did.
4 Q. When did you go away?
5 A. I don't recall.
6 Q. Is there anything in the chart
7 which would help you recall when you went
8 away?
9 A. My last note in the chart was
10 7/31/92. I don't know what day of the week
11 that was, but it is conceivable that I left
12 at some point after that.
13 Q. Did you make arrangements for
14 Mrs. Foley to be cared for by another
15 physician in your absence?
16 A. Yes, I did.
17 Q. What arrangements did you make?
18 A. My associate, Michael Daniels,
19 Dr. Michael Daniels was asked to take over
20 her care.
21 Q. And that's the co-defendant in
22 this case?
23 A. One of them.
24 Q. Are you related to Dr. Daniels?
25 A. Yes.
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2 Q. How are you related?
3 A. We are first cousins.
4 Q. When did Dr. Daniels finish his
5 residency?
6 A. I don't remember.
7 Q. Approximately?
8 A. 1991.
9 Q. Did Dr. Daniels have a fellowship
10 anywhere before joining you?
11 A. Dr. Daniels was chief resident at
12 a hospital in New York just the year prior
13 to coming to join me.
14 Q. What hospital?
15 A. I forget.
16 Q. Was it one of the major hospital
17 facilities or one of the smaller ones?
18 A. I think was a major hospital.
19 Q. Does Dr. Daniels have any
20 subspeciality?
21 A. He is an internist.
22 Q. Does he have a subspecialty as
23 you do in infectious diseases?
24 A. I don't think so.
25 Q. Did Dr. Daniels, to your
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2 knowledge, have any training in the
3 specific field of Lyme disease diagnosis
4 and treatment prior to July of 1992?
5 MR. BILLIG: Note my objection
6 to the form of the question. It is
7 assuming that there is a specific field as
8 opposed to that being a segment of an area
9 of practice of medicine such as infectious
10 diseases treating Lyme's, rheumatology.
11 MR. MAURER: I am using the
12 term "field" loosely.
13 MR. BILLIG: That's the
14 problem with the question. Someone with --
15 MR. MAURER: I will ask it in
16 a different way.
17 MR. BILLIG: Different than
18 somebody who works on internal medicine.
19 BY MR. MAURER:
20 Q. Did Dr. Daniels have any training
21 in the treating of Lyme disease before July
22 1992?
23 A. Yes.
24 Q. What knowledge do you have of the
25 training?
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2 A. Because Dr. Daniels has exhibited
3 an excellent knowledge of medicine and all
4 of its subfields to me as well as to the
5 American Board of Internal Medicine.
6 Q. Doctor, I asked if you knew
7 whether he had any training with respect to
8 the subject of diagnosis and/or treatment
9 of Lyme disease.
10 MR. BILLIG: Do you have any
11 specific knowledge he is asking you?
12 A. The answer is still yes. I think
13 that we are maybe misinterpreting each
14 other. There is no course in Lyme
15 disease. However, if one is a well trained
16 physician, especially if one stays in the
17 Northern Westchester area, one will be
18 trained in Lyme disease.
19 Q. To your knowledge, did
20 Dr. Daniels have any training in the
21 diagnosis and treatment of Lyme disease?
22 And I am asking it the way I asked you
23 earlier today whether he had courses at
24 medical school, during an internship,
25 residency or through attendance at seminars
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2 or clinics.
3 I want to know what you know
4 about his training on this subject.
5 MR. BILLIG: Other than what
6 he has already testified to?
7 MR. MAURER: Yes.
8 A. I don't know of any specific
9 course that Dr. Daniels took.
10 Q. When did Dr. Daniels start
11 practicing medicine in Westchester County?
12 A. In, I believe, July of 1991, I
13 think.
14 Q. Is that when he joined your
15 practice?
16 A. I think.
17 Q. You arranged for your associate,
18 Dr. Daniels, to cover for you during your
19 vacation and take care of Mrs. Foley while
20 she was admitted at the hospital?
21 A. Correct.
22 Q. Did you arrange for any other
23 physicians to also perform that function?
24 MS. KARAMITSOS: Note my
25 objection.
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2 A. I asked a physician trained in
3 gastroenterology to see her in
4 consultation.
5 Q. Who is that?
6 A. Dr. Brenner.
7 Q. When did you ask him to do that?
8 A. On the day of admission.
9 Q. Did you discuss with Dr. Brenner
10 any tests that he was going to perform on
11 Mrs. Foley during her admission before you
12 went away?
13 MS. KARAMITSOS: Note my
14 objection.
15 A. Yes, on the day that he saw her.
16 Q. What date did he first see her?
17 A. On 7/30.
18 Q. So that was before you went
19 away?
20 A. That is correct.
21 Q. What tests did he tell you he was
22 going to perform?
23 A. He was going to do a
24 sigmoidoscopy on the patient and he had
25 just agreed with all of the other things
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2 that I had previously ordered.
3 Q. During Mrs. Foley's period of
4 admission at Northern Westchester Medical
5 Center in July and August of 1992, did she
6 receive any treatment with antibiotics?
7 A. Yes.
8 Q. What antibiotics was she treated
9 with?
10 A. She was treated with Cipro,
11 Flagyl, and gentamicin.
12 Q. Anything else?
13 A. I believe that's all of the
14 antibiotics she received.
15 Q. Who prescribed them?
16 A. Dr. Daniels did and -- I think
17 Dr. Daniels did.
18 Q. Have you verified that, doctor,
19 by looking at the chart?
20 A. I actually started her on Cipro
21 and -- I started her on Cipro.
22 Q. What did you give her the Cipro
23 for?
24 A. After the cultures were obtained
25 which they were the day before, then I gave
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2 her Cipro for most probably infection in
3 her intestines period.
4 Q. Did Dr. Daniels prescribe Flagyl
5 and gentamicin?
6 A. Yes, he did.
7 Q. For what condition did
8 Dr. Daniels prescribe Flagyl and
9 gentamicin, if you know?
10 A. I am sure for the same
11 condition.
12 Q. What is the basis for that
13 statement; is there anything in the records
14 that you are relying upon?
15 A. No, because those are standard
16 drugs that we use for people who have
17 severe enteritis, severe infection of their
18 intestine.
19 Q. All three medications are used by
20 doctors in the medical community where you
21 practice to treat bacterial infections or
22 viral infections?
23 A. There is no antibiotic to treat a
24 viral infection. They are used to treat
25 enterotoxic bacteria.
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2 Q. Doctor, when you treat someone
3 with a medication that is used for
4 treatment of an intestinal infection, can
5 that medication also improve any other
6 infectious condition within the body; in
7 other words, can it have some benefit in
8 treatment of something else?
9 A. If whatever else is causing an
10 illness or whatever is there is sensitive
11 to the antibiotics that I mentioned.
12 Q. Is Borrelia Burgdorferi sensitive
13 to any of those medications?
14 A. I don't believe so.
15 Q. What is the basis for your
16 response?
17 A. I believe that people in -- this
18 is in 1992 we are talking about?
19 Q. This is based upon your current
20 knowledge; what is the basis for your
21 statement in response to my last question?
22 A. Cipro, Flagyl, gentamicin have --
23 not at that point, anyway, or have not been
24 used successfully in the treatment of Lyme
25 disease. As far as I know.
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2 Q. Dr. Daniels is nodding his head
3 up and down while you are responding. Is
4 he --
5 A. I don't know.
6 Q. -- is he giving you some
7 information that I should know about?
8 MR. IACONIS: Objection. Note
9 my objection.
10 MR. BILLIG: I was nodding
11 also. I was twitching my shoulder once in
12 a while, too.
13 BY MR. MAURER:
14 Q. Is it your testimony that none of
15 those three medications would have any
16 benefit for someone who has Lyme disease?
17 A. Yes.
18 Q. Their condition would not improve
19 at all?
20 A. They are not accepted standard
21 treatment for Lyme disease.
22 Q. I understand that. I am asking
23 you if it is your testimony that none of
24 those three medications; Cipro, Flagyl or
25 gentamicin, would not benefit a Lyme
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2 disease patient by reducing any of their
3 symptoms?
4 MR. BILLIG: I object to the
5 form of the question. I don't know what
6 symptoms you are talking about. It is so
7 broad.
8 MR. MAURER: Lyme disease
9 symptoms.
10 MR. BILLIG: Like what?
11 MR. MAURER: Any of the Lyme
12 disease symptoms that the doctor has
13 knowledge of.
14 THE WITNESS: I have to answer
15 that I don't know the answer right now.
16 BY MR. MAURER:
17 Q. Doctor, while Mrs. Foley was
18 admitted to Northern Westchester Medical
19 Center in July and August of 1992, was she
20 tested for Lyme disease?
21 A. Yes.
22 Q. Who ordered the test?
23 A. Dr. Brenner.
24 Q. How do you know that?
25 A. In retrospect I had received in
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2 my mailbox at the hospital a positive titre
3 for Lyme disease ordered by Dr. Brenner.
4 After I went back to the chart
5 and I had seen that he had ordered it.
6 MR. IACONIS: I move to strike
7 the nonresponsive portion to counsel's
8 question.
9 Q. When did you go back and check
10 your mailbox?
11 A. About the 20th of the month.
12 Q. Of 1992?
13 A. Yes, 2/20/92.
14 Q. Where is this mailbox?
15 A. In the doctors' lounge.
16 Q. On the main level?
17 A. That is correct.
18 Q. In August of 1992 what was your
19 understanding as to how the hospital would
20 deliver test reports to you?
21 A. I guess there are many different
22 ways that test reports are delivered;
23 number one, they are entered into the
24 chart; number two, any tests that come back
25 after the patient has left the hospital,
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2 the reports are put into the physician's
3 mailbox.
4 Q. How soon after the test result is
5 available was it the practice of the
6 hospital, as far as you can recall, to
7 place the test report in the doctor's
8 mailbox?
9 MR. IACONIS: I will object to
10 the form of the question, as the doctor I
11 am sure does not place reports of test
12 results that he does not run in his own
13 mailbox or in any other doctors'
14 mailboxes.
15 MR. BILLIG: You have not
16 established that -- your question does not
17 have any foundation for that.
18 BY MR. MAURER:
19 Q. Doctor, was this the first
20 incident where you had a lab report placed
21 in your mailbox at Northern Westchester
22 Medical Center?
23 A. Not at all.
24 Q. Was this the first time that you
25 had a lab report or test report placed in
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2 your mailbox at Northern Westchester
3 Medical Center when the result became
4 available after the patient --
5 MR. IACONIS: Objection to
6 form.
7 MR. BILLIG: Objection to the
8 form. The question is assuming facts not
9 testified to.
10 MR. IACONIS: Exactly.
11 MR. MAURER: What are you
12 referring to?
13 MR. BILLIG: There has been no
14 testimony as to when this was put in his
15 mailbox. You have testimony that he went
16 away on vacation.
17 MR. MAURER: I understand
18 that.
19 BY MR. MAURER:
20 Q. Prior to August first, 1992, did
21 Northern Westchester Medical Center ever
22 put a note in your mailbox or a lab report
23 after the patient had been discharged from
24 the hospital?
25 MR. IACONIS: Objection to
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2 form.
3 A. Yes.
4 Q. How many times, approximately,
5 would you say that happened before
6 August 1st, 1992?
7 MR. IACONIS: Objection. What
8 relevancy does that have with regard to
9 that?
10 MR. MAURER: Plenty of
11 relevancy.
12 MR. IACONIS: Note my
13 objection, please.
14 MR. BILLIG: Note my objection
15 as well.
16 He is asking to you approximate.
17 THE WITNESS: I have no idea.
18 BY MR. MAURER:
19 Q. More than 10?
20 A. Yes.
21 MR. IACONIS: Objection to
22 form.
23 Q. More than 20?
24 A. I would assume so.
25 Q. How long have you been an
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2 attending physician at Northern Westchester
3 Medical Center?
4 A. 25 years.
5 Q. More than a hundred times?
6 MR. IACONIS: Objection to
7 form.
8 MR. BILLIG: You are asking
9 him to guess.
10 MR. MAURER: He said that he
11 was there 25 years.
12 MR. BILLIG: I realize that we
13 cannot object to relevance now because of
14 the usual stipulations.
15 MR. MAURER: You can have a
16 continuing objection to the line of
17 questions.
18 BY MR. MAURER:
19 Q. Is it fair to say that it
20 happened over a hundred times over 25
21 years?
22 MR. IACONIS: Objection to
23 form.
24 Q. You can answer, doctor.
25 A. I honestly have no idea how many.
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2 Q. Doctor, what has been your
3 experience prior to August 1st, 1992 as to
4 how soon a lab report would be placed in
5 your mailbox in a circumstance where the
6 patient had already been discharged from
7 the hospital and the test result came back
8 after the discharge?
9 MR. IACONIS: Objection to
10 form.
11 MR. BILLIG: I have to object
12 to that question. I have no idea what you
13 mean by "experience."
14 MR. IACONIS: Why don't we
15 talk about the lab report that we are
16 concerned with here.
17 MR. MAURER: I am not going to
18 confine myself to that. I want to know
19 about his experience in the past with this
20 hospital and the procedures. I want to
21 know if they have deviated from what they
22 did in the past.
23 MR. IACONIS: You will have
24 your opportunity.
25 MR. MAURER: We can get a
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2 ruling. I will not continue if you are
3 going to stop him.
4 MR. BILLIG: It is fine if you
5 want to seek a ruling. I have no idea what
6 you mean by experience.
7 MR. MAURER: I am sure that
8 you do.
9 MR. BILLIG: I have an
10 understanding of what you might try to do
11 because of the burden of proof you have in
12 this case but I don't know what experience
13 means. If you can hone the question down
14 more, then let's try.
15 BY MR. MAURER:
16 Q. When I say experience, doctor, I
17 am saying in the prior patients who had
18 been discharged from a hospital stay at
19 Northern Westchester Medical Center and the
20 test that was done during their admission
21 was reported after their discharge by
22 placing the test result in your mailbox;
23 are you with me so far?
24 Do you understand what I am
25 saying?
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2 A. Yes.
3 Q. What I would like to know is, did
4 you make any observation during those
5 previous times when those circumstances
6 presented themselves with other patients
7 before August 1, 1992 as to approximately
8 how soon the test report would be placed in
9 your mailbox?
10 MR. IACONIS: Objection.
11 MR. BILLIG: I object to the
12 form of the question. You are assuming
13 that there was not a telephone call
14 before.
15 MR. MAURER: You are
16 testifying before the witness.
17 MR. BILLIG: No, I am not. I
18 want to state my objection on the record.
19 You are assuming --
20 MR. MAURER: You are
21 suggesting testimony to this witness. You
22 are tainting the record. This is improper
23 for you to do. It is a speaking objection
24 which is suggesting testimony to your
25 witness. It is wrong.
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2 MS. KARAMITSOS: Let's have
3 the witness leave the room and we can
4 resolve this.
5 MR. BILLIG: I have no problem
6 with my client being here.
7 MR. MAURER: Considering the
8 number of times that you have consulted
9 with --
10 MR. BILLIG: Let me know when
11 you are finished so that I can respond.
12 MR. MAURER: Considering the
13 number of times that you have consulted
14 with your client during this deposition I
15 suggest that you let him step out so that
16 you can make clear on the record for me
17 what the basis is for your objection.
18 MR. BILLIG: Okay. There was
19 testimony before that telephone calls occur
20 with respect to results. He testified that
21 lab reports are put in the chart. The
22 question assumes that the only way that the
23 information was delivered was by being put
24 in the mailbox.
25 MR. MAURER: It is not
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2 assuming that.
3 MR. IACONIS: That is the sole
4 basis of my objection.
5 MR. BILLIG: I will be happy
6 to have the question read back.
7 MR. MAURER: I asked when the
8 report was placed in his mailbox. You
9 cannot be any clearer than that.
10 MR. BILLIG: That's not the
11 question.
12 MR. IACONIS: Re-ask the
13 question.
14 MR. BILLIG: If it will help
15 have him read it back and if I am wrong
16 that's fine.
17 MR. MAURER: I asked when was
18 the report was put in the mailbox.
19 MR. IACONIS: The question
20 implies that the report was delivered.
21 MR. BILLIG: How could he know
22 that.
23 MR. MAURER: Then let him tell
24 me.
25 MR. BILLIG: That's the
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2 problem with the question.
3 MR. MAURER: You are trying to
4 protect the witness. That's inappropriate.
5 MR. BILLIG: The question
6 calls for something that he doesn't know.
7 MR. MAURER: I asked him when
8 it was put in his mailbox.
9 MR. BILLIG: Is there any kind
10 of information that he would have knowledge
11 of?
12 MR. MAURER: I will try to
13 work around this to avoid a ruling.
14 BY MR. MAURER:
15 Q. How often do you check your
16 mailbox at Northern Westchester, and let's
17 go back to 1992?
18 A. Every day that I am in the
19 community.
20 Q. Was that your practice during the
21 last 25 years?
22 A. That is correct.
23 Q. If someone were to put a test
24 report in your mailbox you would receive it
25 within 24 hours?
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2 MR. IACONIS: Objection. He
3 said if he was in town.
4 Q. Is that fair to say?
5 A. As long as I am in town, yes.
6 Q. In August of 1992 when you
7 returned from your vacation, how soon did
8 you check your mailbox at the hospital?
9 A. I don't remember when I came back
10 from vacation. I would have checked it the
11 day after I got back.
12 Q. Do you have any record in your
13 office that would tell you when you
14 returned from vacation and started seeing
15 patients?
16 A. That's very possible.
17 MR. MAURER: I will ask the
18 reporter to leave a space in the record and
19 ask you to provide that information when
20 you have the opportunity to read the
21 transcript.
22 MR. BILLIG: We will take it
23 under advisement.
24 THE WITNESS: Sure.
25 ** INFORMATION REQUESTED TO BE SUPPLIED:
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2 --------------------------------------
3 Q. Doctor, I am not asking you about
4 when you would get a telephone report. I
5 am only limiting it to when a report,
6 physical report, a document would be placed
7 in your mailbox in your experience.
8 I am talking about the same
9 situation that I asked you about before
10 prior to August 1992 over the 25 years that
11 you worked at Northern Westchester Medical
12 Center and had privileges there. In those
13 circumstances where a test was done during
14 a hospital admission and the result came
15 back after the patient was discharged how
16 soon would you typically find the report in
17 your mailbox after the date the report was
18 returned, and when I say returned I mean if
19 the report is dated 9/1, then how soon
20 after 9/1 would you typically see that in
21 your mailbox?
22 MR. IACONIS: Objection.
23 MR. BILLIG: Note my objection
24 to the form.
25 THE WITNESS: I really don't
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2 know the answer.
3 BY MR. MAURER:
4 Q. Are we talking about days, weeks,
5 months?
6 MR. BILLIG: He has --
7 Q. If you can, answer the question.
8 A. Certainly not months, certainly
9 not weeks but I don't -- I don't know.
10 Q. In August of 1992, to your
11 knowledge, what was the hospital standard
12 procedure for reporting tests to physicians
13 who had responsibility for treating someone
14 who had been a patient in the hospital at
15 Northern Westchester Medical Center?
16 A. What is the hospital's
17 responsibility?
18 Q. No. What was its procedure for
19 reporting, as far as you recall?
20 A. Okay. There were three methods
21 as I said before; number one, if the
22 patient was an in-patient the report would
23 be on the chart; number two, if the patient
24 was already dischaged or an out-patient
25 then the report would be in the doctor's
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2 box; number three, if the report required
3 notifying a doctor because of some life
4 saving illness, then they would call the
5 physician.
6 Q. Doctor, when I said Northern
7 Westchester Medical Center did you
8 understand that I was referring to Northern
9 Westchester Hospital Center?
10 A. Yes.
11 Q. The last thing you said was if
12 there is some life threatening situation
13 that a telephone call would be made to the
14 doctor's office?
15 A. Usually, yes.
16 Q. Was that the only time, as far as
17 you know, when a telephone call would be
18 made to the doctor's office?
19 A. As far as I know, yes.
20 MR. MAURER: Would you be kind
21 enough to mark this document entitled
22 Criteria For Notification of Result as
23 Plaintiffs' Exhibit No. 3.
24 (Plaintiffs' Deposition Exhibit 3
25 was marked for identification. Exhibit
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2 retained by counsel.)
3 BY MR. MAURER:
4 Q. Would you please look at
5 Plaintiffs' Exhibit No. 3 marked for
6 identification. Have you ever seen
7 Plaintiffs' Exhibit No. 3 marked for
8 identification, a copy or original of this
9 specific document before?
10 A. No.
11 Q. To your knowledge, did Northern
12 Westchester Hospital Center have a
13 procedure in August of 1992 which called
14 for a doctor to be called upon completion
15 of a positive Lyme titre?
16 A. I don't know the answer.
17 Q. Have you at any time ever had
18 reason to read any documents regarding the
19 procedures that Northern Westchester
20 Hospital Center uses for reporting test
21 results to doctors who have hospital
22 privileges there?
23 A. No.
24 Q. In order to have privileges at a
25 hospital are you required to be familiar
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2 with hospital procedures in some way?
3 MR. BILLIG: Note my
4 objection.
5 Q. In other words, do they give you
6 any materials to read to become familiar
7 with so that you know how they do things,
8 anything like that?
9 A. We don't get information
10 regarding internal, office procedures. I
11 don't get told how they are going to do a
12 special throat culture and what the nurses
13 do and what the laboratories do, no.
14 Q. Are you told anything about how
15 they are going to report back on tests
16 performed on your patients?
17 MR. IACONIS: Objection to the
18 form of the question. Asked and answered.
19 MR. MAURER: That is a
20 different question.
21 THE WITNESS: I don't know the
22 answer to that.
23 MR. IACONIS: Off the record.
24 (Discussion off the record.)
25 (Witness and counsel confer.)
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2 MR. MAURER: I would like to
3 have marked for identification two pages
4 entitled Guidelines For Telephone Reporting
5 of Laboratory Results Plaintiffs' Exhibit
6 No 4.
7 (Plaintiffs' Deposition Exhibit 4
8 was marked for identification. Exhibit
9 retained by counsel.)
10 MR. BILLIG: Can we get copies
11 of that?
12 MR. MAURER: Sure.
13 Let's take a short break at
14 this time.
15 (Recess taken.)
16 BY MR. MAURER:
17 Q. Doctor, have you ever seen
18 Plaintiffs' Exhibit No. 4 before this
19 moment?
20 A. What is Exhibit No 4?
21 Q. The Guidelines For Telephone
22 Reporting of Laboratory Results. You have
23 a copy of it before you. Take a good look
24 at it and tell me whether you have ever
25 seen it before, please.
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2 A. This is -- are you referring to
3 telephone reporting of laboratory results?
4 These are guidelines that are used for
5 laboratory technicians, I assume.
6 Q. The question is what you know and
7 not what you assume.
8 A. I have never seen these two
9 pieces of paper before.
10 Q. Okay. When did Dr. Brenner order
11 a Lyme test to be performed on Mrs. Foley
12 during her 7/30/92 hospital admission?
13 A. The test was ordered on 8/6/92.
14 Q. What are you looking at to
15 provide you with that information?
16 A. The physician order sheet.
17 Q. And this is the actual hospital
18 record that is marked for identification as
19 Plaintiffs' Exhibit No. 2; is that correct?
20 A. That is correct.
21 Q. What kind of Lyme test was
22 ordered; does it indicate that?
23 A. It does not.
24 Q. Does the record indicate when the
25 test result was reported by the laboratory?
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2 MR. IACONIS: Objection to
3 form. Note my objection.
4 MR. BILLIG: Reported to who
5 or what? I don't know what you mean.
6 BY MR. MAURER:
7 Q. Could you find the Lyme disease
8 test report pertaining to the 8/6/92 Lyme
9 test, please?
10 MR. BILLIG: The 8/6/92 order
11 you mean?
12 MR. MAURER: Yes.
13 Q. Do you have it, sir?
14 A. Yes, I do.
15 Q. May I see it, please?
16 A. Yes.
17 MR. IACONIS: It is --
18 MR. MAURER: Let's mark
19 this --
20 MR. IACONIS: It is in the
21 chart. We don't have to mark it. There is
22 no reason to mark it. It is part of the
23 original bound office hospital chart.
24 MS. KARAMITSOS: You could
25 make a photocopy of it and mark it as a
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2 subsection.
3 MR. IACONIS: There is no
4 particular reason to mark it. It is part
5 of Plaintiffs' Exhibit No. 2. We don't
6 have to mark it.
7 MR. BILLIG: That's true.
8 MR. MAURER: The report
9 indicates that it was done on 8/10/92 in
10 the upper right-hand corner.
11 MR. IACONIS: Is that a
12 question to the doctor?
13 MR. MAURER: Yes.
14 MR. BILLIG: I object to the
15 form of the question.
16 MR. IACONIS: Objection to
17 form.
18 MS. KARAMITSOS: Objection.
19 MR. BILLIG: The document
20 speaks for itself. "Date done," there is a
21 date written in there. It speaks for
22 itself.
23 BY MR. MAURER:
24 Q. What does it refer to when it
25 says "date done," what does that mean?
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1 RICHARD S. KLEIN
2 A. I don't know. I assume that is
3 when the test --
4 MR. BILLIG: Don't make any
5 assumptions.
6 A. I don't know.
7 Q. On the upper left-hand corner of
8 the test report it says C O L L by. Does
9 that mean collected by?
10 A. Can I see the chart?
11 Q. Sure.
12 A. I have no idea what C O L L by
13 means. Sorry.
14 Q. How many test reports have you
15 seen for Northern Westchester Hospital
16 Center in the course of your 25 years in
17 treating patients?
18 MR. IACONIS: How many Lyme
19 results?
20 MR. MAURER: No, lab tests.
21 A. Thousands.
22 Q. You have never had occasion to
23 find out what the letters C O L L by refers
24 to?
25 A. Definitely not.
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2 Q. This test report was interpreted
3 as positive or negative, doctor?
4 A. Can I see the test, please.
5 Q. Yes.
6 A. It is reported as positive.
7 Q. Is there anything on this report
8 that indicates when the test was reported
9 positive by the lab?
10 MR. IACONIS: I will object to
11 the form of the question.
12 MR. BILLIG: I don't know that
13 you have established that he would --
14 counsel, there are a lot of dates on this
15 thing.
16 MR. MAURER: I am not a doctor
17 but I seem to be able to understand it so
18 that I thought he might be able to.
19 A. I am sorry. Can you ask me the
20 question again, please.
21 Q. Is there anything on the test
22 report for the Lyme test that was ordered
23 on 8/6/92 which indicates when the test
24 result was reported by the lab?
25 MR. IACONIS: I will object to
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2 the form of the question.
3 MS. KARAMITSOS: I will join
4 in the objection.
5 MR. BILLIG: Is there a
6 specific date that you want to refer to
7 since you said that you understand the
8 test?
9 MR. MAURER: It is a half page
10 document. I am asking him and if he has an
11 answer then he can give me an answer.
12 THE WITNESS: I have no idea
13 when the test was reported. I must say
14 that we usually get the actual test results
15 within a reasonable period of time. It is
16 not like one had to wait weeks for it.
17 BY MR. MAURER:
18 Q. What is a reasonable period of
19 time, doctor?
20 MR. BILLIG: He said usually.
21 MR. MAURER: I asked him what
22 he meant by that.
23 Q. What do you mean by a reasonable
24 period of time?
25 MR. BILLIG: That would depend
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1 RICHARD S. KLEIN
2 on the test.
3 MR. MAURER: Please don't
4 testify for him. Don't you qualify what
5 his response should be.
6 MR. BILLIG: He said tests.
7 Do you want the answer read
8 back?
9 MR. MAURER: You cannot
10 testify for him. If it is going to depend
11 on the test, then let him tell me that.
12 Though that is not your position. Please.
13 Let him testify.
14 MR. BILLIG: Note my objection
15 to the form of the question. You may
16 answer.
17 A. It depends. Some tests that are
18 sent out to the health department for
19 tuberculosis take months to get back.
20 Tests done in-house, if it is an x-ray we
21 usually get it the next day. If it is a
22 lab test it is usually within a week. I
23 don't know the exact timing. But usually
24 it is not some extraordinary period of
25 time.
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2 Q. Was the Lyme test ordered on
3 8/6/92 by Dr. Brenner done within a lab in
4 Northern Westchester Hospital Center?
5 A. Yes.
6 Q. What was the date Mrs. Foley was
7 discharged from the hospital in August of
8 1992?
9 A. 8/8.
10 (Witness and counsel confer.)
11 BY MR. MAURER:
12 Q. In your experience, doctor, in
13 August of 1992, was it the practice of the
14 hospital personnel to initial the test
15 reports for tests done in the hospital's
16 lab when the results were reported to a
17 physician?
18 MR. IACONIS: I will object to
19 the form the question.
20 MR. BILLIG: In what way were
21 they reported to a physician?
22 MR. MAURER: The results
23 reported, whether it be verbally, over
24 telephone or a copy handed to the doctor,
25 any way.
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2 MR. IACONIS: Note my
3 objection.
4 THE WITNESS: I am not a lab
5 technician. I have no idea.
6 BY MR. MAURER:
7 Q. Have you ever seen anyone initial
8 a Northern Westchester Hospital Center lab
9 report in a record at the hospital; have
10 you ever seen it initialed?
11 A. Quite frankly, I have never
12 looked. It is not germane to the
13 information I need. Actually there is
14 initials -- there are two different types
15 of initials, two different people. There
16 are the letters NP and the letters SQ. I
17 have never looked at that line before.
18 Q. Do you share a common box with
19 Dr. Daniels?
20 A. No.
21 Q. He has a separate box?
22 A. Correct.
23 Q. Where is it in proximity to your
24 box in the physicians' lounge at the
25 hospital center?
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2 A. There is one long line of
3 alphabetical boxes and his would be under
4 the box labeled D and mine under the letter
5 K.
6 Q. How far away would the boxes be
7 from each other?
8 A. I would say about four feet.
9 Q. While you were away in August of
10 1992 was your associate, Dr. Daniels,
11 supposed to check your box for reports?
12 A. I don't think so.
13 Q. Did you direct him to; did you
14 instruct him to?
15 A. No, we never talked about looking
16 in each other's boxes.
17 Q. When he covers for you on seeing
18 patients who are under your care, do you
19 expect him to do the same things that you
20 would do yourself procedurally as far as
21 checking for test reports that relate to a
22 patient of yours?
23 A. I don't think we have ever -- I
24 have never checked his box. I cannot
25 comment on him. If he was going away for a
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2 week I would not bother checking his box.
3 Q. Even if you were going to follow
4 his patients in his absence?
5 A. I don't think there is usually
6 anything in -- no, no.
7 Q. You have discussed the
8 circumstances of this lawsuit with
9 Dr. Daniels, your associate prior to coming
10 here today at some point?
11 A. Yes, I think so.
12 Q. Did you ever discuss with him
13 whether or not he checked your mailbox at
14 the hospital while you were away on
15 vacation?
16 MR. BILLIG: Prior to the
17 commencement of this action?
18 MR. MAURER: No, at any time.
19 MR. BILLIG: The question
20 would be then, prior to the commencement of
21 the lawsuit did they discuss it.
22 MR. MAURER: I am not limiting
23 it to prior. There is no privilege here
24 that is to be asserted. I want to know at
25 any time before coming here today.
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1 RICHARD S. KLEIN
2 MR. BILLIG: If they discussed
3 it after the commencement of the lawsuit
4 with their attorney --
5 MR. MAURER: That's something
6 else. Again you are suggesting ways for
7 him to avoid the answer.
8 BY MR. MAURER:
9 Q. Did you ever discuss it with
10 Dr. Daniels at any time prior to today
11 other than when you were with your
12 attorney?
13 A. Did I ever discuss whether
14 Dr. Daniels looked in my mailbox?
15 Q. During your period of vacation in
16 August of 1992?
17 A. Never did.
18 Q. Doctor, would you agree with me
19 that as part of the care of your patients
20 staying current with test results that are
21 reported pertaining to your patients, is an
22 important part of the treatment of your
23 patient, generally?
24 A. No.
25 Q. Doctor --
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2 A. You are talking about a lapse of
3 a couple of days I assume.
4 Q. I did not specify a time period.
5 THE WITNESS: Can you read
6 back the question.
7 (The pending question was read.)
8 THE WITNESS: I have to
9 rescind that and say generally yes.
10 BY MR. MAURER:
11 Q. What were the circumstances under
12 which you first found out that Mrs. Foley's
13 Lyme test which was ordered by Dr. Brenner
14 on 8//6/92 was reported positive for Lyme
15 disease?
16 A. I believe I said before I checked
17 my mailbox. I saw a positive titre, a
18 positive test, and I went back and looked
19 at her chart and --
20 Q. Her hospital chart or your own
21 office chart?
22 A. Hospital chart.
23 Q. What else did you do?
24 A. I made a mental note that -- made
25 a mental note of that because of my feeling
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2 that -- well, that's it.
3 Q. What kind of mental note did you
4 make?
5 A. Okay.
6 MR. BILLIG: Other than what
7 he has already testified to.
8 MR. MAURER: I am asking him.
9 Let him answer.
10 A. I just made a mental note that
11 she had a positive test report.
12 Q. Did you note it in your office
13 chart when you found out about it?
14 A. No, I don't believe that I had
15 returned to my office yet.
16 Q. When did you first return to your
17 office following your vacation in August of
18 1992?
19 A. I don't know.
20 Q. If we leave a space in the
21 transcript can you check your office
22 records to determine that --
23 A. Yes.
24 Q. -- and provide the information
25 when you review the transcript, please?
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1 RICHARD S. KLEIN
2 A. Yes.
3 ** INFORMATION REQUESTED TO BE SUPPLIED:
4 --------------------------------------
5 Q. When you saw that there was a
6 positive Lyme test in your mailbox on
7 August 20, 1992 did you call up Dr. Brenner
8 to discuss the test result?
9 A. Not at all.
10 Q. Did you discuss it with
11 Dr. Daniels?
12 A. No.
13 Q. Did you discuss it with Mrs. or
14 Mr. Foley at that time?
15 A. No.
16 Q. Did you cause a copy of the test
17 result to be sent to Dr. Brenner or the
18 Foleys?
19 MR. IACONIS: Did he cause a
20 copy to be sent to Dr. Brenner?
21 MR. MAURER: Yes.
22 A. No.
23 Q. Did you call up the Foleys and
24 ask them to come in for a consultation to
25 discuss the test results?
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2 A. No.
3 Q. In August of 1992 was it your
4 practice to ever treat a patient for Lyme
5 disease with an appropriate antibiotic
6 based upon a positive test without any
7 other of the symptoms that you have already
8 mentioned today?
9 MR. IACONIS: I will object to
10 the form of the question. I believe that
11 was asked and answered.
12 MR. BILLIG: I am forgetting.
13 I thought he testified about this.
14 MR. MAURER: I think I asked a
15 slightly different question.
16 MR. BILLIG: What was it?
17 This was something that was addressed after
18 the break where he addressed it.
19 MR. IACONIS: I think that is
20 specifically what occurred.
21 Off the record.
22 (Discussion off the record.)
23 MR. MAURER: Counsel is
24 correct that I did address this after the
25 luncheon recess.
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2 MR. BILLIG: The whole line.
3 BY MR. MAURER:
4 Q. Doctor, what was your
5 understanding of the symptoms that could be
6 presented in a case of Lyme disease
7 affecting the central nervous system back
8 in August of 1992 and in September of 1992?
9 A. In August of 1992?
10 Q. August and September of 1992,
11 that time frame?
12 A. You are asking what symptoms one
13 would have with neurologic Lyme disease?
14 Q. What type of symptoms were you
15 familiar with that one might present with?
16 A. Number one, obviously Bell's
17 palsy can be caused by Lyme disease; some
18 form of neuralgia, nerve pain and nerve
19 inflammation, and possibly some other form
20 of palsy.
21 Q. Back in the time period that I
22 just asked you about, did you know or were
23 you familiar with any reported cases of
24 Lyme disease patients with central nervous
25 system involvement exhibiting any
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2 radiculitis or radiculopathy?
3 A. Yes.
4 Q. What did you know in that
5 regard?
6 A. That a nerve inflammation can be
7 caused by Lyme disease and that
8 inflammation can cause pain in a particular
9 nerve.
10 Q. For example, that sort of nerve
11 inflammation could be misinterpreted as a
12 pinched nerve, true?
13 MR. IACONIS: Objection to
14 form.
15 MS. KARAMITSOS: Objection.
16 MR. BILLIG: Objection.
17 Q. Could a radiculitis in the
18 shoulder be misinterpreted as a pinched
19 nerve when it is actually connected to
20 someone having a central nervous system
21 Lyme disease condition?
22 MR. IACONIS: Objection.
23 MS. KARAMITSOS: Objection.
24 It is a double negative in the way you
25 asked it.
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2 MR. MAURER: No, it is not.
3 THE WITNESS: If you are
4 saying that can a disease -- well, if
5 everything is taken in context I assume if
6 that is what you are saying. If somebody
7 comes in and has pain in the nerve without
8 any -- I mean, people just don't walk in a
9 vacuum. People have to have some other
10 thing going on.
11 If somebody has Lyme disease you
12 would think that they have neuritis or an
13 inflammation of the nerve.
14 If somebody has a disk protrusion
15 then you would not think Lyme disease. I
16 don't know what you are asking.
17 Q. In other words, if somebody has a
18 positive Lyme disease test and they come in
19 complaining of some type of radiculopathy
20 back in August and September of 1992 you
21 thought about whether or not it was related
22 to a Lyme disease condition; is that
23 correct?
24 MR. IACONIS: Objection to
25 form.
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2 A. I think you are confusing me.
3 The issue of a positive Lyme disease test
4 does not make Lyme disease. I think we
5 went over that right after lunch.
6 Q. I didn't ask you whether or not
7 you would diagnose Lyme disease based upon
8 a positive Lyme disease test.
9 I asked if somebody had a recent
10 Lyme disease test reported as positive and
11 they came in with symptoms of radiculitis
12 or radiculopathy that you give
13 consideration to the possibility that it
14 might be Lyme disease related.
15 A. Definitely.
16 Q. Did Mrs. Foley report any
17 symptoms of radiculitis or radiculopathy to
18 your office in September of 1992?
19 A. Mrs. Foley complained of an acute
20 episode -- an acute episode of back pain
21 connected with some pulling or pushing
22 motion.
23 She just didn't wake up with an
24 aching joint or an aching nerve out of the
25 clear blue sky. It was related to some
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2 episode, if I recall correctly.
3 Q. She came into the office and saw
4 you?
5 A. She came into the office and saw
6 my associate.
7 Q. Dr. Daniels?
8 A. Correct.
9 Q. And she said that she was having
10 this pain and thought it might be related
11 to moving some things in her classroom in
12 preparation for starting the new school
13 year; is that what you are saying?
14 A. No.
15 Q. Okay. What does your chart
16 indicate on the office visit that you are
17 referring to; what is the date of the visit
18 and what does it say?
19 A. Okay. On 8/29/92 the patient was
20 seen in the office. Dr. Daniels'
21 handwriting, "Patient complaining not
22 sleeping-with pain Thursday night."
23 "School teacher was cleaning" which is in
24 parentheses. "She complained of right
25 shoulder pain pinched nerve with a question
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2 mark. Travels down arm to fingers. Pain
3 started after pulling on heavy drawers."
4 That's all the history.
5 Q. Did your chart in the office
6 contain the Northern Westchester Hospital
7 Center lab report pertaining to the
8 positive lab test that came back in August
9 of 1992 as of 8/29/92?
10 A. I have no idea.
11 Q. So that this office visit took
12 place roughly nine days after you obtained
13 the Lyme test report that was interpreted
14 as positive from your mailbox at the
15 hospital; is that right?
16 A. Definitely.
17 Q. Is there any way that you can
18 determine if and when you put the test
19 report in your chart in the office?
20 A. Probably after. I don't know.
21 No. When I came back from vacation. I
22 have no idea when that was.
23 Q. Would you expect that you would
24 have put the positive Lyme test report in
25 Mrs. Foley's chart the day you returned
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1 RICHARD S. KLEIN
2 from your vacation and when you first
3 returned to the office for work?
4 A. I would have brought the test
5 back to my office the first day that I came
6 back, probably the day before I came back
7 and it would have been filed the next day
8 by our secretary.
9 Q. How many secretaries did you have
10 then?
11 A. Probably three.
12 Q. Who were they?
13 A. I don't know.
14 Q. You don't know the names of any
15 of them?
16 A. Well, two I know.
17 Q. Who are they?
18 A. Lillian Kanhel, Susan Piffer and
19 the third I don't recall.
20 Q. When you read from the note about
21 possible pinched nerve, was that a notation
22 suggesting a diagnosis by Dr. Daniels or
23 was it terminology given to Dr. Daniels by
24 Mrs. Foley?
25 A. I can't --
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1 RICHARD S. KLEIN
2 Q. Have you ever asked Dr. Daniels
3 that question prior to today's deposition
4 other than during a meeting with your
5 attorney?
6 A. Did I ask Dr. Daniels what? Did
7 I ask him about his note?
8 Q. Yes.
9 A. No.
10 Q. What treatment was rendered to
11 Mrs. Foley on 8/29/92?
12 A. She was given an antiinflammatory
13 agent called Voltarin and a muscle relaxant
14 Flexoril.
15 Q. Was she given any other
16 instructions that are noted in the chart?
17 A. Regarding her musculoskeletal
18 problem, no.
19 Q. Was she given any instructions?
20 A. No.
21 Q. What is the next contact that you
22 or Dr. Daniels or anyone else in your
23 medical practice had with Mrs. Foley after
24 that office visit of 8/29?
25 A. She was seen again 8/30/92.
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1 RICHARD S. KLEIN
2 Q. Who saw her?
3 A. Dr. Daniels.
4 Q. He saw her on 8/29?
5 A. That is correct.
6 Q. What history did she provide, if
7 any?
8 A. "Saw patient patient on Sunday
9 today. Complained of right shoulder blade
10 pain, not responding to Voltarin, no fever,
11 chills." I can't read the next line.
12 "Patient had normal temperature." Her
13 blood count was normal.
14 Q. That means that blood work was
15 done in your office?
16 A. That is correct. And her blood
17 tests were done in the office were getting
18 much better from when she had been in the
19 hospital.
20 Q. What blood test showed
21 improvement?
22 A. Her sedimentation rate, ESR.
23 Q. What is ESR short for?
24 A. Something sediment rate. I don't
25 know what the letter E stands for.
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2 Q. What is the sedimentation rate?
3 A. It is a measurement of how fast
4 blood comes out of solution, the red blood
5 cells drop out of solution. It usually is
6 an indication of inflammation. Sometimes
7 it just is elevated because of cancer
8 inflammation or sometimes anemia.
9 Q. In your experience do Lyme
10 disease payments have elevated sed rates or
11 lower sed rates?
12 A. I think -- I don't know the
13 answer to that. I think people -- I don't
14 know the answer to that.
15 Q. What other blood tests were
16 reported back as improved?
17 A. Her white blood count as I
18 mentioned.
19 Q. What was indicated?
20 A. It is hard to read. I think that
21 it was less than 8,400.
22 Q. What is the white blood count
23 used for?
24 A. Usually it is an indication of
25 severe bacterial infection.
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2 Q. If there is a bacterial infection
3 how does the white blood count get
4 interpreted as showing that?
5 A. Usually it is very much elevated.
6 Q. What is a normal range for the
7 white blood count?
8 A. Anywhere from 4500 to 10,000.
9 Q. Are there any other blood tests
10 that were reported as improved?
11 A. Not on this visit.
12 Q. Was there any treatment rendered?
13 A. Patient was given Vicodan which
14 is a painkiller and Percocet.
15 Q. Are they both narcotic
16 painkillers?
17 A. I don't know if the word narcotic
18 is the correct -- I don't know if that
19 is -- I don't know the answer to that.
20 Q. Are either of those painkillers
21 considered to be addictive medication?
22 A. I don't know the answer to that
23 either.
24 Q. Was there any other treatment
25 rendered?
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2 A. No.
3 Q. What is the next contact you had
4 with Mrs. Foley, according to your chart?
5 A. She was seen the next day 8/31/92
6 in the office.
7 I have to change that answer.
8 You got my head a little tired.
9 Those drugs are narcotics and
10 they are addictive. Sorry. I keep on
11 making you write over and over.
12 Q. That's okay.
13 With regard to the 8/31/92 office
14 visit -- you said that was an office visit,
15 did you not?
16 A. That is correct.
17 Q. Who saw Mrs. Foley?
18 A. Dr. Daniels.
19 Q. What is the history that is noted
20 in the chart?
21 A. At present shoulder feels better,
22 complains of nausea.
23 Another note saying "given
24 Percocet," and I can't read the rest of
25 it. I don't know.
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2 Q. Was there any other treatment
3 besides the Percocet being prescribed and
4 given?
5 A. No, he just sent her for x-ray.
6 Q. Of what part of her anatomy?
7 A. I believe it was the shoulder but
8 let me not guess. Let me look.
9 Okay. She was sent for thoracic
10 spine, right shoulder and right scapula.
11 Q. When were those x-rays done?
12 A. September first.
13 Q. Where were they done?
14 A. They were done at PBS.
15 Q. When was the report received by
16 your office?
17 A. I don't know. The date of the
18 x-ray was 8/31/92. The date of the report
19 is September 1st, 1992. I don't know when
20 the office received it.
21 Q. At the time did your office have
22 any practice or procedure for Bates
23 stamping records received, reports received
24 and so forth?
25 A. No.
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2 Q. Is there anything else noted for
3 that date?
4 A. For that date, no.
5 Q. That date meaning August 31,
6 1992.
7 A. No.
8 Q. Let's go back before we get into
9 the month of September. What contact did
10 Dr. Daniels have, according to your chart,
11 with Mrs. Foley after she was dischaged
12 from Northern Westchester Hospital Center?
13 A. Dr. Daniels saw the patient three
14 or four times.
15 Q. Go back to the first time he saw
16 her after her discharge, please.
17 A. "8/12/92, follow up after
18 hospital discharge, doing great. No pain.
19 Losing weight. On 1200 calorie diet.
20 Taking her medications."
21 He notes that he was repeating
22 her liver blood tests and noted that they
23 were exceptionally high in the hospital.
24 Q. Doctor, to your knowledge, do
25 Lyme disease patients ever exhibit elevated
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2 liver tests?
3 A. In my knowledge in 1992.
4 Q. Right?
5 A. Okay. They can have mildly -- in
6 my knowledge as of 1992 was that they could
7 have mildly elevated blood tests. I think
8 that this patient's were significantly
9 elevated.
10 Q. What significance, if any, would
11 be attributed to an elevated liver test in
12 a Lyme disease patient back in August of
13 1992 as far as you know?
14 A. Usually patients had mild
15 inflammation of their liver as part of a
16 general infection. Usually patients will
17 have a mild elevation of their liver test
18 because of a mild inflammation.
19 It is not one of the common
20 presenting signs of Lyme disease.
21 Q. You say occasionally, in other
22 words?
23 A. Usually. I have never seen it
24 before.
25 Q. But you were aware of it back
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2 then?
3 A. Yes.
4 Q. Meaning back in the summer of
5 1992?
6 A. That is correct.
7 Q. You said that Mrs. Foley's liver
8 test showed that she had an elevated liver
9 count?
10 A. Severely elevated, abnormal test
11 of her liver.
12 Q. And that was during her admission
13 of July and August of 1992?
14 A. Elizabeth was severely ill during
15 that admission.
16 Q. I just want to confirm that we
17 are talking about the admission in July and
18 August of 1992 in Northern Westchester
19 Hospital Center.
20 A. That's right. She was severely
21 ill.
22 Q. Is there anything else noted for
23 8/12/92 for that follow-up office visit?
24 A. Just a note, something to the
25 effect that if her liver test remained
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2 abnormal she will need an ERCP which is a
3 special test checking her common ducts.
4 Q. Any other notation for that day?
5 A. That day, no.
6 Q. Any treatment that you have not
7 told me about on that day?
8 A. Note that the patient was still
9 taking her antibiotics which she had been
10 discharged in the hospital with.
11 Q. Which antibiotics are those?
12 A. Cipro, Flagyl.
13 Q. Is that it?
14 A. Can we go home.
15 Q. For treatment?
16 A. 8/12.
17 Q. Miles to go before we sleep.
18 MR. BILLIG: What is the next
19 question.
20 Q. What is the next date that
21 Dr. Daniels had contact with Mrs. Foley
22 after 12/92?
23 A. 8/17/92.
24 Q. Was that by way of telephone or
25 office visit?
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2 A. Dr. Daniels called the patient to
3 let her know that her liver tests were all
4 completely normal.
5 Q. Liver tests performed when?
6 A. The liver tests that were done on
7 8/12/92.
8 Q. I didn't recall you saying
9 anything about that. So that there were
10 liver tests done on 8/12/92?
11 A. Yes, sir.
12 Q. And those were done within your
13 office?
14 A. I don't know. They were done in
15 my office.
16 Q. Is there anything else indicated
17 in that office note for 8/17/92?
18 A. For the telephone, no. There is
19 a note to repeat the test on Wednesday
20 which would be the 19.
21 Q. You mean the liver test?
22 A. That is correct.
23 Q. What is next noted in the chart
24 regarding Dr. Daniels' treatment of
25 Mrs. Foley?
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2 A. 8/19/92.
3 Q. Office visit?
4 A. Office visit.
5 Q. History indicates what?
6 A. "Patient lost two pounds, doing
7 well, liver test and repeated -- liver
8 tests were repeated, sugar test was
9 normal."
10 Q. And that liver test that was
11 repeated was also done in your office?
12 A. These were done at an outside
13 laboratory.
14 Q. Which one?
15 A. The ones on 8/19 were done at the
16 Yorktown Medical Laboratory.
17 Q. Is anything else noted for the
18 8/19/92 office visit?
19 A. No.
20 Q. What came next in the chart with
21 regard to Dr. Daniels' contact with
22 Mrs. Foley?
23 A. 8/27/92, one week later.
24 Q. Hold on. Go ahead.
25 What happened on 8/27/92, was it
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2 an office visit or a telephone call?
3 A. It looks like an office visit.
4 Q. History indicates what?
5 A. Patient feels great. She will
6 come back next Tuesday and she needs an
7 ESR. It was a hundred in the hospital.
8 Also, needs repeat liver test including a
9 GGT in the hospital. The GGT in the
10 hospital is 500 and the last one done on
11 8/19 it was 177 so that it was the only
12 abnormal test of the liver that was still
13 abnormal but it was coming down.
14 Q. Is there any indication as to
15 whether or not Mrs. Foley had discontinued
16 taking the antibiotics Cipro and Flagyl
17 when discharged from the hospital and was
18 still taking the Cipro and Flagyl?
19 A. She should have stopped on 8/15.
20 When seen on 8/12 Dr. Daniels has a note
21 she had three more days of medication.
22 Q. Is there any other notation on
23 the 8/27/92 with regard to history or
24 treatment?
25 A. None, just patient feels great.
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2 Q. When was the next contact with
3 Mrs. Foley?
4 A. We are up to 8/29/92.
5 Q. That's what we have already gone
6 into. There was an office visit where she
7 reported sleeplessness with right shoulder
8 pain et cetera, et cetera?
9 A. Correct.
10 Q. Doctor, how many patients would
11 you estimate you have treated for Lyme
12 disease in the past?
13 MR. BILLIG: In 1992.
14 MR. MAURER: At any time. You
15 just want general information now.
16 A. A thousand.
17 Q. A thousand over what period of
18 time?
19 A. In the past 8 years?
20 (Witness and counsel confer.)
21 A. Probably more.
22 Q. Just to qualify that response,
23 doctor, when you say that you have treated
24 probably over a thousand patients for Lyme
25 disease over the last eight years those are
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2 patients that you diagnosed Lyme disease
3 in; in other words, you saw more than a
4 thousand and you did not treat some of them
5 for Lyme disease and you are just telling
6 me about the ones that you actually
7 treated; is that what you are saying?
8 A. These are patients that were
9 either diagnosed by myself or somebody
10 else. I either saw them as my own private
11 patient or as consultations.
12 Q. Am I correct that you are saying
13 that you have actually treated over a
14 thousand patients for Lyme disease and not
15 that you have examined them to determine if
16 they had Lyme disease; is that right?
17 A. I must have examined thousands
18 more to determine whether they had Lyme
19 disease.
20 Q. In your experience in treating
21 over a thousand Lyme disease patients have
22 you ever observed any patients to improve
23 with antibiotic treatment and when the
24 antibiotic therapy is discontinued they
25 relapse?
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2 A. No, not off the top of my head.
3 Q. Doctor, in the summer of 1992
4 what was the antibiotic or antibiotics of
5 choice for treatment of Lyme disease as a
6 first stage of treatment?
7 A. For oral medication doxycycline,
8 ampicillin and for intravenous Rocephin.
9 Q. Ampicillin which is known
10 generically as what, Rocephin?
11 A. Right now I don't know. I want
12 to change ampicillin to amoxicillin.
13 Q. What was the standard length of
14 treatment for oral antibiotics in the
15 summer of 1992?
16 A. 21 days.
17 Q. Doctor, are you aware of any
18 laboratories that perform Lyme disease
19 tests recommending that the tests be
20 repeated within a short time after the
21 first test results are received?
22 A. What do you mean by a short
23 time?
24 Q. A matter of weeks?
25 A. No.
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2 Q. Have you ever seen that indicated
3 in any lab reports regarding Lyme disease
4 testing?
5 A. No.
6 Q. Could you pull out the Lyme
7 disease report that was interpreted as
8 positive by the Northern Westchester
9 Hospital Center?
10 MR. IACONIS: Let's not pull
11 it out. Let go to it.
12 MR. MAURER: Exactly.
13 MR. IACONIS: I would hate for
14 him to follow the direction and pull it
15 out.
16 A. Okay.
17 Q. May I see it, please?
18 A. Okay.
19 Q. Doctor, you have had a chance to
20 now look at the Lyme disease test that was
21 interpreted as positive by the Northern
22 Westchester Hospital Center regarding
23 Mrs. Foley that was ordered by
24 Dr. Brenner. Am I correct that this
25 specific lab report indicates that under
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2 certain circumstances the test should be
3 repeated?
4 A. Yes, it does.
5 Q. Do you know why laboratories
6 would suggest that under certain
7 circumstances a Lyme disease test should be
8 repeated within a matter of weeks?
9 A. Yes.
10 Q. What would the reason be that you
11 are aware of, or reasons?
12 A. I thought that you were referring
13 before to as a matter of course to have her
14 test repeated. It is obvious that one
15 repeats a blood test when one is suspicious
16 of a disease and has a high index of
17 suspicion. If you do and the test comes
18 back normal at first, then one should
19 repeat it because it takes anywhere from
20 three to four weeks to develop a positive
21 blood test for Lyme disease.
22 Q. Doctor, did you ever hear of the
23 term seronegative Lyme disease?
24 A. Yes.
25 Q. What is your understanding of
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2 what that term means?
3 A. Seronegative Lyme disease to me
4 indicates somebody who has Lyme disease but
5 who has a negative test because they
6 probably had an antibiotic which kills Lyme
7 disease -- which cures Lyme disease and
8 therefore keeps the blood test from
9 becoming positive.
10 Q. Would I be correct that some Lyme
11 disease patients have that phenomenon occur
12 where they do not demonstrate antibodies to
13 Lyme disease bacteria because they have
14 received antibiotics before the test is
15 done?
16 A. Or because they have a Lyme
17 disease and the Lyme disease has exhibited
18 itself before the three to four weeks that
19 it takes for him them to have a positive
20 test.
21 Q. The lab test report that we just
22 referred to in Mrs. Foley's Northern
23 Westchester Hospital Center chart for the
24 Lyme test that was done indicates that in
25 cases of seronegativity, which I am
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2 paraphrasing, it may be too early during
3 the primary infection that the test should
4 be repeated two to three weeks after Lyme
5 is suspected. What is the primary
6 infection referred to with Lyme disease as
7 you understand it?
8 A. As I said before, you could have
9 Lyme disease anywhere between day one and
10 day 30 and not have a positive test. It
11 can take up to three to four weeks to
12 develop a positive test; so Lyme disease
13 would be having a disease entity and not
14 having a positive test.
15 Q. And that is why it is important
16 to make a clinical diagnosis with regard to
17 Lyme disease, notwithstanding the fact that
18 a patient may have a negative Lyme test; is
19 that correct?
20 A. That is correct.
21 Q. Let's talk about the reverse
22 situation. In your experience of treating
23 over a thousand Lyme disease patients over
24 the last 8 years have you ever observed
25 someone to have a positive Lyme test which
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2 you consider to be a false positive?
3 A. There are many people who have a
4 positive Lyme test after having Lyme
5 disease and that Lyme test can be positive
6 for years.
7 Q. Does that hold true in all cases
8 or just some?
9 A. In many people.
10 Q. Can you quantify it in
11 percentages for me; is it 50 percent, 25
12 percent, 75 percent, roughly, in your
13 experience and I am talking about your own
14 personal experience which is quite lengthy?
15 A. My feeling is that people would
16 probably have a positive test for at least
17 a year to two following Lyme disease.
18 Q. All people or just some?
19 A. I said most.
20 Q. What does most mean, more than 50
21 percent?
22 A. More than 50 percent.
23 Q. How much more, can you quantify
24 it more than that or do you just want to
25 say 50 percent. I want to make sure that
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2 you are comfortable with the numbers in the
3 record.
4 MR. BILLIG: Don't guess.
5 A. My feeling would be more than 50
6 percent.
7 Q. Doctor, have you ever read any
8 peer review articles in any medical
9 journals which provided any statistics
10 regarding what number of patients who have
11 had Lyme disease would have a false
12 positive following completion of their
13 treatment for Lyme disease?
14 A. Could you tell me what you mean
15 by false positive?
16 Q. A test that will continue to show
17 the presence of antibodies to the Lyme
18 disease bacteria in the absence of any
19 symptoms consistent with Lyme disease.
20 A. I am sure that I have read them.
21 I just don't remember them offhand.
22 Q. Would you have them in your file
23 at home?
24 A. I don't know.
25 Q. Doctor, do you have a practice in
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2 those patients who have been treated for
3 Lyme disease in the past who have a
4 positive test reported within a matter of
5 one to two years or so after completion of
6 their treatment for Lyme disease of
7 informing a patient if the subsequent test
8 comes back positive even if you are unaware
9 of them having any symptoms consistent with
10 current Lyme disease?
11 A. We often take a follow-up blood
12 test years afterwards. Now we do. We have
13 been doing that for the past few years.
14 Q. What does the last few years
15 mean?
16 A. The past two or three years.
17 Q. Since after the fall of 1992?
18 A. Probably around then or before.
19 I don't remember.
20 Q. Is there any way to know when you
21 started; is there any way to check any
22 records in your office to determine when
23 you started that practice; would you be
24 able to look at the files of any patients
25 to see?
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2 A. It would be kind of difficult.
3 Q. Are there any records in the
4 office that would help you?
5 MR. BILLIG: Asked and
6 answered. He said it would be kind of
7 difficult. You are asking him the same
8 question.
9 MR. MAURER: I thought he was
10 just responding to the last part where I
11 mentioned patients records.
12 Q. Is there anything else in the
13 office that would not be in a patient's
14 chart that could help you find the answer
15 to the last question?
16 A. It would be very difficult.
17 Q. I interrupted your answer. Do
18 you remember the question?
19 A. Yes. You asked whether we
20 informed patients whether their titre is
21 still elevated. I am sorry -- is that
22 correct?
23 Q. Yes.
24 A. The answer is, if the patient
25 calls and asks for the results as often we
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2 ask them to do after a test is done then we
3 tell them. Usually people come in and ask
4 for a Lyme -- well, we have them come back
5 months afterward, like a year afterwards
6 even. When we call up for the result we
7 tell them that it was 1.9 and now it is
8 1.1.
9 Q. Who would do that?
10 A. I are usually go over the blood
11 test results with the patient.
12 Q. Why did not you or Dr. Daniels do
13 that with Mrs. Foley prior to August 1992?
14 MR. BILLIG: Objection to
15 form.
16 Q. Is there a reason why neither you
17 nor Dr. Daniels discussed Mrs. Foley's
18 positive Lyme test that was ordered by
19 Dr. Brenner were her in August or September
20 of 199 -- I am sorry, in August of 1992?
21 MR. BILLIG: Objection to
22 form. Why don't you ask him if he
23 discussed the test result with the Foleys.
24 MR. MAURER: He answered that
25 before. I asked him if he reported it to
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2 Brenner or to the Foleys.
3 MR. BILLIG: You are right.
4 A. I cannot answer for Dr. Daniels.
5 I can answer for myself. As I noted I
6 looked at the blood test result and I
7 believe, to the best of my knowledge, that
8 blood test result reflected a positive
9 titre from a previous infection.
10 I went and looked at the chart to
11 make sure that there was nothing else that
12 I -- that there was no other information
13 that I did not know because I was away. It
14 was my definite belief that blood test
15 represented a prior infection that was
16 adequately treated.
17 Q. When did you look in the chart?
18 A. The day that I looked at the
19 positive blood test.
20 Q. August 20, 1992?
21 A. Approximately.
22 Q. At that time were you aware that
23 Mrs. Foley remained on oral antibiotics
24 that she was in the hospital until
25 approximately 8/15/92; did you know that
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2 when you checked the chart?
3 A. Not at all.
4 Q. Would you agree that by not
5 telling Mrs. Foley about her positive Lyme
6 test that was ordered by Dr. Brenner that
7 you deviated from your own practice in
8 reporting a positive Lyme test to a patient
9 who had been previously treated for Lyme
10 disease?
11 A. Definitely not.
12 Q. Why do you not agree with that
13 statement? Is that not what happened?
14 A. I said that ordinarily if a
15 patient will call me -- I don't pay any
16 credence to a positive blood test. If
17 somebody in general comes in to have a
18 blood test to find out if their titre is
19 falling, then I ask them to call me back.
20 I didn't believe that this
21 patient had Lyme disease and there was no
22 reason for me to have picked up the
23 telephone and called them to tell them
24 about a positive test which was taken out
25 of context.
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2 I don't usually go pick up the
3 telephone and call people to tell them what
4 their titre is.
5 Q. Doctor, have you ever treated
6 Mrs. Foley for Lyme disease without any
7 symptoms that you would say are consistent
8 for Lyme disease?
9 A. I don't remember treating her for
10 Lyme disease without having some reason, if
11 that was your question.
12 MR. BILLIG: You answered it.
13 He will ask you another question.
14 Q. My question had to do with
15 symptoms and not reasons. I am asking you
16 if your medical practice has ever treated
17 Mrs. Foley for Lyme disease when she did
18 not exhibit any symptoms consistent with
19 the diagnosis of Lyme disease?
20 MR. BILLIG: I object to form.
21 MR. MAURER: I asked the
22 question a different way.
23 A. I can answer that. Okay.
24 Unfortunately there has been a progression
25 on how physicians look upon Lyme disease
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2 depending on 1986 and today. In 1986 a
3 blood test took four weeks to get back and
4 there were times that one had to treat from
5 a clinical point of view how you felt the
6 patient -- what kind of disease the patient
7 had.
8 As time progressed when testing
9 became a bit more accurate and took less
10 time to get, for example, you can get a
11 test done immediately in your office, then
12 one could rely a little less on the
13 clinical feeling and combine them both,
14 rather than the positive or negative blood
15 test. So, science does not offer a
16 physician today an exact test.
17 Unfortunately one had to learn
18 over the years how to play the game of the
19 art of medicine by looking at a patient and
20 feel that they had either a symptom or a
21 reason, and in the old days we used to
22 treat if somebody had a tick bite.
23 Now we know that only a small
24 percentage of tick bites make the patient
25 infected.
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2 So, it is a little unreasonable
3 to answer that question in a different time
4 frame. In 1986 we treated patients one way
5 and in 1987 a different way, and we keep on
6 evolving until we are supplied with the
7 proper diagnostic tools we have to rely on
8 what is current medical thinking.
9 Q. Is it your testimony, doctor,
10 that it was accepted medical practice in
11 the community in which you practice
12 medicine to treat a patient based solely
13 upon a tick bite?
14 A. At one point, yes. Not today.
15 Q. Are you aware of any peer review
16 published articles that indicate that it is
17 accepted medical practice to treat a
18 patient solely based upon the history of a
19 tick bite?
20 A. Today, no.
21 Q. Are you aware of any, doctor, is
22 what I am asking?
23 MR. BILLIG: Note my
24 objection.
25 MR. IACONIS: I will object.
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2 A. The question lacks a temporal
3 aspect.
4 MR. BILLIG: Obviously it is
5 irrelevant because it does not apply to
6 this case.
7 MR. MAURER: It does.
8 A. If I may just say that until
9 there was a paper stating that patients
10 should not be treated for tick bites it was
11 the standard medical practice in 1986 or
12 1987 to treat people for tick bite.
13 Q. Can you name any physicians in
14 Westchester who you know who did that?
15 A. I cannot personally name them
16 right now.
17 Q. Do you know if Gary Wormser or
18 Dr. Peter Welch did that?
19 A. I have no idea.
20 Q. What was the theory behind your
21 treating patients for Lyme disease based
22 solely upon the history of a tick bite
23 without presentation of any Lyme disease
24 symptoms?
25 MR. BILLIG: I don't know if
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2 he ever testified that he did that.
3 A. I never said that I did that.
4 MR. BILLIG: There is no
5 testimony about that for that patient.
6 There was prior testimony about that with
7 the rash?
8 A. Inflammation?
9 Q. Doctor on 11/17/90 did you
10 consider Mrs. Foley's complaint with regard
11 to her right fifth finger to be a Lyme
12 disease symptom?
13 A. No.
14 MR. BILLIG: Off the record.
15 (Discussion off the record.)
16 BY MR. MAURER:
17 Q. What was your reason for treating
18 Mrs. Foley on 11/17/90 with three weeks of
19 doxycycline based upon a positive test and
20 no other Lyme disease symptoms?
21 MR. BILLIG: It has already
22 been asked and answered. This was the
23 question that was asked and discussed
24 before and after the break.
25 Q. Can you think of any reasons
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2 today why you would have treated her for
3 Lyme disease?
4 MR. BILLIG: He testified to
5 that already. He said that she probably
6 told him something. He testified about
7 that already.
8 Q. Doctor, is a reddened tender area
9 sufficient diagnostic language to describe
10 a Lyme rash?
11 A. No --
12 Q. Doctor --
13 A. -- but can be.
14 Q. Doctor, when you became aware of
15 Mrs. Foley's positive Lyme test on or about
16 8/20/92 and you felt that it was not
17 correct and you did not think it was
18 indicative of her having Lyme disease; is
19 that correct?
20 MR. IACONIS: Objection to
21 form.
22 MR. BILLIG: He testified
23 about how he interpreted --
24 MR. MAURER: I will rephrase.
25 BY MR. MAURER:
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2 Q. You interpreted Mrs. Foley's
3 positive Lyme test on or about 8/20/92 as
4 being insignificant; is that true?
5 A. I never said that at all.
6 Q. Did you think it was
7 significant?
8 A. Nothing is insignificant.
9 However, in the -- in her clinical setting
10 of what disease she came into the hospital
11 with and how she got better and how she
12 went home, to find a blood test that had
13 been taken out of context it was a
14 significant test in that it was a test but
15 it had no -- it had no relevance to her
16 situation.
17 My interpretation of that test
18 was that it was a positive test. Could it
19 have been positive from whatever disease
20 state, such as there are some disease
21 states such as chronic hepatitis or some
22 immunologic problem that she had with her
23 liver that caused the slight elevation. It
24 was merely more in my head that she had a
25 positive test because she had -- because
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2 she had previously been treated for Lyme
3 disease.
4 Q. Doctor, how could the positive
5 test that we are talking about be false
6 positive for Lyme disease and actually be
7 related to some other abnormality that you
8 mentioned in your last response?
9 A. My belief is that this test, it
10 was a test that was positive from a
11 previous infection.
12 Q. That's not what I asked you. I
13 was trying to understand how it could have
14 been caused by something else that you have
15 mentioned?
16 A. I am sure that you are aware that
17 other diseases can cause a positive Lyme
18 test.
19 Q. A positive antibody response to
20 Lyme disease bacteria. Is that what you
21 are saying?
22 A. Yes.
23 Q. Are you talking about a Lyme
24 titre or ELISA or about a Western Blot; to
25 which test are you referring?
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2 A. To Western Blot.
3 Q. But this was not a Western Blot,
4 was it?
5 MR. BILLIG: Your question was
6 general.
7 Q. We are talking about the test you
8 found out about on 8/20/92, right, doctor?
9 A. This test in my head, and I say
10 it for the third time --
11 MR. BILLIG: Five times.
12 A. This test represented to me a
13 previously treated Lyme disease infection
14 by Elizabeth Foley.
15 Q. You also by your own testimony
16 here today acknowledge that there is a less
17 than 50 percent experience of people who
18 will have a positive test, who actually do
19 have Lyme disease in situations where they
20 don't have any symptoms that you would say
21 are Lyme related?
22 A. There are not too many physicians
23 who will treat a positive blood test taken
24 out of context.
25 Q. Are there other physicians that
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2 you are aware of in the medical community
3 in which you practice who would determine
4 that even though the test was false
5 positive that the patient had a right to
6 know and would make sure that the patient
7 knew about the positive test; do you know
8 of any doctors who would do that?
9 MR. BILLIG: Objection to
10 form?
11 A. I have no idea what other doctors
12 would do.
13 MS. KARAMITSOS: Note my
14 objection.
15 A. I have no idea what other doctors
16 do. I think that I do a pretty reasonable
17 job of talking to my patients.
18 Q. Doctor, were there other doctors
19 in the medical community in which you
20 practiced in the summer of 1992 who would
21 have suggested a repeat Lyme disease test
22 after learning that the Lyme disease test
23 was positive under circumstances such as
24 what happened with Mrs. Foley in August of
25 1992 even though they thought the test was
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2 false positive?
3 MR. IACONIS: Objection to
4 form.
5 A. Number one, I have no idea what
6 other doors doctors would do.
7 Q. I would like to know when this
8 test should be repeated?
9 MR. BILLIG: Note my
10 objection.
11 Q. Did you recommend to Mrs. or
12 Mr. Foley at any time that they get a
13 second opinion from any other physician
14 with regard to what should be done, if
15 anything, based upon the receipt of this
16 positive Lyme test that was ordered by
17 Dr. Brenner during Mrs. Foley's admission
18 to Northern Westchester Hospital Center?
19 A. No.
20 Q. Did you ever discuss with the
21 Foleys whether or not Mrs. Foley should
22 have another Lyme test done after learning
23 that the test Dr. Brenner ordered was
24 reported as positive for Lyme disease?
25 A. When should this test be done?
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2 Q. At any time. Did you ever
3 discuss it being done at any time, be it a
4 day, a week, a month or year afterwards,
5 did you ever discuss with him that a repeat
6 test should be done?
7 MR. BILLIG: Asked and
8 answered.
9 MR. MAURER: If you want to
10 limit his response, fine. I would want to
11 hear from him whether he did or did not
12 ever say that. Let him answer that for the
13 record?
14 A. There happens to be a temporal
15 relationship between the receipt of this on
16 8/20 and next time I saw the Foleys which
17 was on 9/5.
18 Q. What do you mean by a temporal
19 relationship?
20 A. I mean, I was not in my office
21 until approximately 9/3 or something like
22 that. You are asking whether I should have
23 called them because of that test or should
24 I have waited until he got back to my
25 office.
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2 Q. I am not asking you that,
3 doctor. That's a decision for the trier of
4 the facts. I am asking you what you did or
5 didn't do.
6 MR. IACONIS: I will object to
7 the form of the question.
8 MR. BILLIG: Note my
9 objection.
10 Q. I may have asked you this
11 before. Forgive me. Did you ever advise
12 your associate, Dr. Daniels, that you had
13 picked up this positive Lyme disease test
14 report in your mailbox pertaining to
15 Mrs. Foley before you returned to your
16 office on or after September 3, 1992?
17 A. Yes.
18 Q. When?
19 A. I had a conversation with
20 Dr. Daniels on August 30, Sunday.
21 Q. What was the conversation about?
22 A. I believe we were going over
23 patients because I was coming -- I don't
24 remember exactly but we were going over
25 different patients. I mentioned to him
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2 about the test. He said he knew about it.
3 He also told me about other people.
4 We discussed also the fact that
5 Elizabeth had been in a couple of times
6 with acute musculoskeletal problems.
7 Q. You mean the symptoms of the
8 spine that as you have testified to?
9 A. Yes.
10 Q. What else did you discuss --
11 A. I --
12 Q. -- about Mrs. Foley?
13 A. I think at that time we both had
14 agreed that -- I told him about the blood
15 test. He said that he knew about it. I
16 told him that I am sure it was from a
17 previous infection. He thought so as
18 well.
19 He told me that she had been in,
20 by the way, for the past couple of days
21 with an acute problem. I think we even
22 discussed that and I think we both agreed
23 that there was no relevance to the blood
24 test and whatever she was having the past
25 two days.
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2 Q. Is that everything that you can
3 recall?
4 A. Yes, and we talked about all of
5 the patients. There must have been about
6 two dozen patients that we went over.
7 Q. Did you give any consideration
8 when talking to Dr. Daniels at that time to
9 the possibility that Mrs. Foley had Lyme
10 disease and the antibiotics she was placed
11 on in the hospital may have reduced her
12 symptoms and that the neurologic symptoms
13 she was presenting with at the end of
14 August may have been Lyme disease
15 symptoms?
16 Did you consider any of that with
17 him at that time?
18 MR. IACONIS: Objection to
19 form.
20 A. I don't know whether I discussed
21 her previous hospitalization. We discussed
22 the symptom complex of the past two days.
23 I on my own had thought of her symptom
24 complex of her hospitalization when I saw
25 the blood test on the 20th and felt that
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2 there was no way that the two were
3 related.
4 This woman had been a completely
5 critically sick person who had a terrible
6 disease that fortunately she got better.
7 Q. Was there any particular reason
8 why you determined that she had a false
9 positive test on or about August 20, 1992?
10 MR. BILLIG: Other than what
11 he has already testified to?
12 Q. Is there any other fact that you
13 considered, and I am not limiting it to
14 August 20, 1992 but I am bringing it right
15 up through your discussion with Dr. Daniels
16 that you just told me about?
17 A. I am sorry.
18 Q. Are there any other facts or
19 circumstances that were known to you
20 between 8/20/92 and the time you spoke to
21 Dr. Daniels which you just testified to?
22 A. 8/30.
23 Q. Are there any other
24 circumstances, information you possessed
25 about Mrs. Foley that you considered in
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2 deciding that the positive Lyme test that
3 Dr. Brenner had ordered was a false
4 positive?
5 A. I knew Elizabeth for 20 years,
6 almost. I took care of her. I was really
7 very close to everything that was wrong
8 with her over those years.
9 If you mentioned Elizabeth Foley,
10 I know that she had been treated a year
11 before that for Lyme disease. I mean at
12 that point I knew everything about her.
13 Q. I would like to have you tell me
14 what facts you were aware of regarding
15 Mrs. Foley's history as her treating
16 physician going back to 1975.
17 I just want to know and have a
18 complete record which is what I am trying
19 to do. I don't want any surprises.
20 Is there anything other than what
21 you have testified to that you were aware
22 of which you considered in determining that
23 Dr. Brenner ordered the Lyme disease test
24 which was positive was a false positive.
25 MR. BILLIG: Do you understand
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2 the question?
3 THE WITNESS: No.
4 MR. IACONIS: He wants to know
5 if there is anything other than what you
6 have testified to which added to your
7 decision.
8 THE WITNESS: No.
9 MR. IACONIS: Is that right,
10 counsel?
11 MR. MAURER: Yes.
12 THE WITNESS: Sorry. Relax.
13 BY MR. MAURER:
14 Q. Do you know when that positive
15 Lyme disease test ordered by Dr. Brenner
16 was placed in your mailbox?
17 A. I --
18 Q. Do you have any knowledge of that
19 as you sit here today?
20 MR. IACONIS: Objection to
21 form.
22 A. I answered that before. I have
23 no idea.
24 Q. We are up to the month of
25 September. What is the first date in the
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2 chart page for September?
3 A. 9/5/92.
4 Q. Nothing before that?
5 A. No.
6 Q. What does it say with regard to
7 9/5/91, an office visit?
8 A. It was a telephone conversation.
9 Elizabeth was crying on the telephone. She
10 was not able to sleep and wanted a sleeping
11 pill. She said that she had some other
12 problems going on and I told her to come in
13 and she refused.
14 Q. What other problems did she have
15 going on?
16 A. At this time I don't remember. I
17 remember -- I mean at that moment I didn't
18 know until I saw her a couple of days
19 later.
20 Q. Do you know why she refused to
21 come in?
22 A. I --
23 Q. Did she ever tell you then or at
24 any date thereafter?
25 A. Never.
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2 MR. BILLIG: Why she refused
3 to come in?
4 MR. MAURER: And he advised
5 her to come in?
6 THE WITNESS: I insisted that
7 she come right over. It was a Saturday.
8 (Witness and counsel confer.)
9 BY MR. MAURER:
10 Q. What else was discussed on the
11 telephone call of 9/5/92?
12 A. Nothing, just that she wanted a
13 sleeping pill which I ordered but I
14 insisted that she come in and both she and
15 her husband said no.
16 Q. Did you --
17 A. I did tell them that I would wait
18 for them.
19 Q. Do you have any notation to that
20 effect in your chart?
21 A. No, but I remember the
22 conversation.
23 Q. Doctor, did she tell you that she
24 had some sort of problem about her face
25 when she spoke to you on the telephone?
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2 A. She told me she was having pain
3 in her face.
4 Q. Did she tell you that she could
5 not move the left side of her face?
6 A. No, not at all.
7 Q. When she told you that she was
8 having pain in her face did you tell her
9 anything about what might be the reason for
10 it?
11 A. I had no idea what the reason
12 could be. All I did was tell her that this
13 was a new symptom and that she had to come
14 over and I would be more than happy to wait
15 for her.
16 Q. What time was that conversation
17 that you were telling her that you would be
18 happy to wait for her?
19 A. Ten o'clock Saturday morning.
20 Q. Was it --
21 A. About ten o'clock.
22 Q. How do you know what time it
23 was? Is it indicated in your chart?
24 A. No.
25 Q. But you remember it?
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2 A. About, yes.
3 Q. What caused you to remember the
4 time?
5 A. Because usually about 11 clock we
6 turn the telephone off. Usually Saturday
7 mornings when we work, we work until about
8 two o'clock, but by about 11 o'clock we are
9 booked up until two so we turn the
10 telephones off.
11 Q. Is that everything for the 9/5/92
12 note?
13 A. Yes.
14 Q. What is the next contact you had
15 with Mrs. Foley?
16 A. She came into my office on
17 9/8/92, three days later.
18 Q. What were you informed?
19 A. Then they went through the whole
20 story that they were on vacation and she
21 developed some problem with her left eye
22 and went to see a doctor and went to the
23 emergency room on Saturday evening, and
24 when I saw her she had full-blown Bell's
25 palsy of her left face.
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2 I had told her that I was really
3 upset that she did not come in on Saturday
4 because maybe those symptoms could have
5 been the prelude to this Bell's palsy and I
6 would have been able to help her.
7 Q. Is it your testimony that if you
8 had seen her on 9/5/92 at 11 o'clock in the
9 morning that you could have prevented her
10 from having Bell's palsy?
11 A. Prevented her from having Bell's
12 palsy?
13 Q. Yes.
14 A. No, I didn't say that.
15 Q. I wanted to clarify it.
16 A. Okay.
17 MR. BILLIG: When you do that
18 you should not paraphrase his prior
19 answer. Just ask him the question.
20 Q. What is Bell's palsy?
21 A. Bell's palsy is a paralysis,
22 usually temporary, of the facial nerves on
23 one side.
24 Q. What causes it?
25 A. Most times it is unknown.
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2 Sometimes it is caused by a tumor pressing
3 on that nerve. Sometimes it is caused by a
4 virus and sometimes it is caused by Lyme
5 disease, but 99 times out of a hundred
6 nobody knows the answer to what causes it.
7 Q. How do you treat somebody who has
8 Bell's palsy caused by Lyme disease?
9 A. Most people treat it with oral
10 antibiotics.
11 Q. I asked you how you treat it,
12 doctor.
13 A. I specifically ask the patient to
14 have a spinal tap and I am a bit more
15 aggressive with Lyme disease and Bell's
16 palsy. If I suspect the patient has Lyme
17 disease then I would ask them to have a
18 spinal tap and treat them with intravenous
19 medication.
20 Q. If you suspect the patient has
21 Lyme disease coupled with Bell's palsy you
22 do that?
23 A. Yes.
24 Q. What is the purpose of having the
25 spinal tap done?
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2 A. To see whether you have
3 neurologic Lyme disease.
4 Q. What would you learn from the
5 spinal tap that would give you that
6 information?
7 A. If the spinal tap was normal then
8 I would not treat it with intravenous.
9 Q. What would you be looking for?
10 A. A possible Lyme disease in the
11 spinal fluid.
12 Q. Is there anything else in the
13 spinal fluid that you would be looking for
14 with respect to making a diagnosis of Lyme
15 disease?
16 A. Other than other elements in the
17 spinal fluid that are abnormal; however, I
18 would not treat it, the abnormal element,
19 the spinal fluid positive for Lyme
20 disease. There are abnormalities of spinal
21 fluid which may or may not exist with Lyme
22 disease.
23 If those abnormalities existed
24 without a positive Lyme titre in the spinal
25 fluid I would probably not treat for Lyme
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2 disease.
3 Q. Did you think that Mrs. Foley's
4 full-blown Bell's palsy on 9/8/92 was
5 related to Lyme disease?
6 A. She definitely had a Lyme disease
7 rash on her face.
8 Q. Describe what you observed on her
9 face.
10 A. She had an ECM on her left face,
11 I believe, or at least -- I have to just
12 check.
13 Q. Please do.
14 A. It was told to me that she -- she
15 told me that she had a rash on her left
16 face.
17 Q. Did she have one on 9/8/92 when
18 she presented herself to you in your
19 office?
20 A. No. She did not. However, she
21 related to me that she had a rash on her
22 left face. That's what brought her to an
23 eye doctor on the day before Saturday, on
24 Friday, I believe.
25 Q. You did not see the Lyme rash on
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2 her face on 9/8?
3 A. No. But she had a rash described
4 in the emergency room on her left face
5 cheek and half of her nose.
6 Q. How was it described? Please
7 read it for me from the record.
8 A. Sure. "Cellulitis left face,
9 left cheek and half of nose."
10 Q. That is not a definitive
11 description of a Lyme disease rash, is it?
12 A. Well, as I described before, I
13 believe, and you asked me what other types
14 of rashes would look like Lyme disease and
15 I said the one that came to mind was a
16 large round flat reddened area which is
17 exactly what they are describing now.
18 Q. What is cellulitis?
19 A. Cellulitis is a reddening of the
20 skin. It really means an infection of
21 the --
22 MR. BILLIG: You answered the
23 question. Stop.
24 THE WITNESS: Okay.
25 Q. You started to say it means
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2 something. What does this large reddened
3 area of the skin mean?
4 A. Okay.
5 MR. BILLIG: You see.
6 A. Quite frankly they described
7 cellulitis referring to a reddened area of
8 the face thinking that it was an infection
9 of the skin when in actuality it was just a
10 reddened area of the face because she did
11 not have an infection of the skin.
12 Q. You are assuming that is what
13 they thought; is that correct?
14 A. I would say that would be an
15 educated assumption.
16 Q. You are assuming that is what
17 they thought, right?
18 MR. IACONIS: Objection.
19 Q. You don't know what they thought
20 but you are assuming it?
21 A. I am --
22 MR. BILLIG: You had him read
23 the records when he testified.
24 MR. MAURER: I understand. He
25 did not write them. That was an
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2 assumption. He testified that they thought
3 something.
4 A. They described something which
5 disappeared over the next two days and
6 cellulitis does not appear -- disappear
7 over the next two days.
8 Q. You testified what they saw and
9 what I am trying to get you to say that
10 your testimony about what they thought on
11 9/5/92 in the emergency room was an
12 assumption on your part, right?
13 MR. IACONIS: Objection to
14 form.
15 A. It was a description. They
16 described something, a rash on her face as
17 being cellulitis. In actuality it turned
18 out not to be.
19 Q. But it could have been a Lyme
20 disease rash?
21 A. In retrospect it was.
22 Q. Did Mrs. Foley have any similar
23 type of rashes on any part of her body
24 during her admission to Northern
25 Westchester Hospital Center in July and
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2 August of 1992?
3 A. Mrs. Foley, according to the
4 record, had a transient rash that was in
5 her armpits and under areas where she
6 sweats.
7 Q. In the folds of skin?
8 A. Yes.
9 Q. Similar to the the folds under
10 the armpit as you described earlier in your
11 chart?
12 A. Correct.
13 Q. When did you become aware of
14 that?
15 A. When did I become aware of the
16 fact that she had a rash?
17 Q. Multiple rashes during her
18 hospital admission in July of 1992; did you
19 find that out on or about August 20, 1992
20 when after receiving the positive Lyme test
21 report in your mailbox you checked the
22 hospital chart?
23 A. I believe so. It was described
24 by the nurse and doctor as being an
25 intertriginial rash. That's the kind that
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2 people who are overweight get, and it was
3 treated with some cream and it went away
4 the next day.
5 Q. The record shows that it went
6 away the next day?
7 A. I don't remember offhand.
8 Q. Based upon your review of the
9 chart is there something else that you want
10 to tell me which is responsive to the last
11 question or two?
12 A. The rash was noted on the first
13 of August and the mention by the nurse was
14 on the second of August.
15 Q. The rash or the rashes?
16 A. There were two different areas,
17 one behind the left knee and the other one
18 behind her chest.
19 Q. Where on her chest?
20 A. It didn't say.
21 Q. There is no reference to anything
22 on her abdomen?
23 A. Okay --
24 MR. BILLIG: Can you read back
25 the last question.
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2 (The pending question was read.)
3 A. Yes.
4 Q. Any other other location now that
5 you are looking again at the chart?
6 A. Bilateral lower extremity.
7 Q. Meaning that both legs had
8 rashes?
9 A. Correct, splotchy areas.
10 Q. Did you read that when you went
11 back and looked at the chart on or about
12 August 20, 1992?
13 A. Yes.
14 Q. So as of August 20, 1992 you were
15 aware that Mrs. Foley ran a significant
16 fever before her admission to the hospital
17 at the end of July 1992, and were aware
18 that Mrs. Foley had a positive Lyme test
19 ordered by Dr. Brenner, were aware that
20 Mrs. Foley had multiple rashes all over her
21 limbs, abdomen, chest, were aware that her
22 symptoms had substantially improved after
23 she was placed on multiple oral
24 antibiotics; is that correct?
25 MR. BILLIG: By symptoms you
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2 mean including the things that you did not
3 mention?
4 MR. MAURER: The symptoms that
5 were noted when she went into the hospital.
6 Q. Am I correct with regard to my
7 last question, sir?
8 A. Mrs. Foley had a whole lot of
9 other things wrong with her.
10 Q. I didn't ask you that. I asked
11 you, were you aware of those things as of
12 August 20, 1992 after you got the Lyme test
13 in your mailbox in the hospital and went
14 back and looked at the chart?
15 A. I characterized the rash --
16 MR. BILLIG: It is a yes or no
17 answer to the question. If you tell him
18 anything more then he will ask you 20
19 more.
20 A. Yes.
21 Q. You were aware that Mrs. Foley
22 had elevated liver test results on August
23 20, 1992 during her hospitalization; is
24 that correct?
25 A. Yes.
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2 Q. Did any of the approximately
3 1,000 Lyme disease patients who you have
4 treated for Lyme disease in the last 8
5 years complain to you of any problems with
6 their intestinal tract including explosive
7 diarrhea as part of their symptom complex
8 that they described?
9 MR. BILLIG: In terms of the
10 treatment?
11 MR. MAURER: I am saying
12 symptoms that they reported to him which he
13 considered in diagnosing Lyme disease.
14 Q. Do you understand, doctor?
15 A. Yes.
16 Q. Can you answer the question?
17 A. The answer is no.
18 Q. Doctor, would you agree that the
19 elevated liver test, the fever, the rashes
20 and the positive Lyme test taken by
21 themselves were all consistent with someone
22 who has Lyme disease?
23 MR. BILLIG: Note my objection
24 to the form of the question. I don't
25 understand what you mean taken by
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2 themselves.
3 MR. MAURER: Looking at those
4 criteria, that those are all consistent
5 with a patient who has Lyme disease based
6 upon the doctor's experience.
7 MR. BILLIG: I believe that he
8 testified to that already.
9 Q. Am I correct?
10 A. Well, you are asking if those
11 symptoms without any other symptoms that
12 the patient has, in this case Mrs. Foley
13 taken alone without the other symptoms
14 could they be caused by Lyme disease.
15 Q. Yes.
16 A. With an exception.
17 Q. What is the exception?
18 A. The elevation of the liver tests
19 are a little high for me to be comfortable
20 with.
21 Q. It is possible that her elevated
22 liver tests could have been caused by Lyme
23 disease, is it not?
24 MR. BILLIG: Note my objection
25 to form. Anything is possible: I have a
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2 problem with that word.
3 A. The elevation so high is a very
4 ununusual -- it is kind of out of the
5 accepted norm for this disease.
6 Q. Is there an accepted norm with
7 respect to the elevated liver tests with
8 regard to Lyme disease that you can point
9 to in print in any peer review article?
10 A. The elevation is a little
11 extraordinary for somebody with Lyme
12 disease.
13 Q. But it is consistent with it
14 nevertheless, is it not?
15 A. Anything is consistent -- I mean
16 that anything is possible is what I mean.
17 Q. I am not asking what is
18 possible. The positive, the elevated liver
19 tests that Mrs. Foley had were consistent
20 with the diagnosis of Lyme disease were
21 they not?
22 A. The elevation that Mrs. Foley had
23 are not consistent with the diagnosis of
24 Lyme disease.
25 Q. Looking back, doctor, --
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2 MR. BILLIG: You mean in
3 hindsight.
4 Q. Looking back in September 5 or
5 September 8, 1992 back at the picture
6 presented by Mrs. Foley at the end of July
7 and into early August before you went away,
8 would you agree that her symptoms and
9 complaints that caused her to be
10 hospitalized by you could have been caused
11 by the acute phase of Lyme disease?
12 A. I considered that. I did
13 consider that.
14 Q. I am now asking you if that could
15 have caused, if the acute phase of Lyme
16 disease could have been responsible for
17 what caused you to hospitalize Mrs. Foley
18 at the end of July 1992.
19 A. In 1992 --
20 Q. Looking back now.
21 A. In 1992 looking back as in
22 September of 1992 I had not known of
23 anybody with that elevated amount of liver
24 test for me to answer yes. Looking back I
25 would agree with you.
INTERIM COURT REPORTING
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0202
1 RICHARD S. KLEIN
2 Q. What about the other things, the
3 high fever, multiple rashes?
4 A. There was a high fever and
5 splotchy rash on the patient.
6 MR. BILLIG: Note my objection
7 to the form. When she was admitted she did
8 not have rashes. That's the problem with
9 the question.
10 MR. MAURER: She had rashes
11 during the hospitalization.
12 MR. BILLIG: The question was
13 when she was admitted. When she was
14 admitted she had other things.
15 MR. MAURER: I am saying
16 during her hospitalization.
17 MR. BILLIG: Okay.
18 BY MR. MAURER:
19 Q. Those rashes during her
20 hospitalization clearly would have been
21 Lyme disease related, right?
22 A. I imagine that a rash and fever
23 can be related to Lyme disease, yes, taken
24 by themselves.
25 Q. Did you ever hear of erythema
INTERIM COURT REPORTING
(914) 761-6600
0203
1 RICHARD S. KLEIN
2 migrans multiple?
3 A. Yes.
4 Q. What is it?
5 A. It is a rash on different parts
6 of the body.
7 Q. What are the usual sizes of the
8 rashes when you have erythema migrans
9 multiple?
10 A. Off the top of my head I don't
11 know the exact size.
12 Q. Do they tend to be smaller than
13 the typical bull's eye?
14 A. They can, but the ones that I see
15 are usually larger, multiple different
16 sizes.
17 Q. Doctor, based upon what you knew
18 on August 20, 1992 about Mrs. Foley's
19 hospitalization, her complaints, her test
20 results, her physical findings, and based
21 upon your experience in treating over a
22 thousand Lyme disease patients, and based
23 upon the positive Lyme disease test that
24 you became aware of, would not your
25 experience have caused you to consider that
INTERIM COURT REPORTING
(914) 761-6600
0204
1 RICHARD S. KLEIN
2 she had Lyme disease and tell the patient
3 that it was a possibility?
4 MR. IACONIS: Objection as to
5 form.
6 MR. BILLIG: Note my
7 objection. If you understand the question
8 you may answer the question.
9 A. Given the presentation and
10 symptoms and findings of a patient who is
11 very ill, who was dehydrated from explosive
12 diarrhea, who had severe pains in her upper
13 abdomen and evidence of cholangitis. Her
14 presenting signs, symptoms would make me
15 not think of Lyme disease.
16 During her hospital stay I would
17 not have thought of Lyme disease. The
18 patient had intestinal as well as biliary
19 signs and symptoms --
20 Q. I was asking you what you knew as
21 of August 20, 1992.
22 A. You are being unfair in cutting
23 me off.
24 Q. I am sorry. I don't mean to.
25 A. You were not there. The patient
INTERIM COURT REPORTING
(914) 761-6600
0205
1 RICHARD S. KLEIN
2 had an acute episode of belly pain -- of
3 right upper abdominal pain, diarrhea. She
4 was ill appearing and high fever and got
5 dramatically better on oral antibiotics and
6 her presentation and clinical improvement
7 have nothing to do with Lyme disease.
8 There is no antibiotic that she
9 was treated with that cures Lyme disease,
10 and for her to dramatically to improve in a
11 24 to 48 hour period from being so sick to
12 so well because of anything she was given
13 would never make me think of Lyme disease.
14 I never thought of Lyme disease
15 as part of the symptom -- as part of her
16 illness, and because of the recurrent pain
17 in her upper abdomen where her gall bladder
18 used to be we were considering a serious
19 illness, stones in the chronic duct or some
20 stones in her liver.
21 You are asking me to assume that
22 everybody with a fever and rash should have
23 Lyme disease and this woman had all sorts
24 of things going on.
25 Q. As of August 20 was your last
INTERIM COURT REPORTING
(914) 761-6600
0206
1 RICHARD S. KLEIN
2 answer responsive to what you knew as of
3 August 20, 1992 because I was not pointing
4 to what you knew during her
5 hospitalization. Did you understand that
6 when you were answering?
7 MR. BILLIG: He testified that
8 he reviewed the chart on August 20.
9 MR. MAURER: That is correct
10 and was --
11 A. And in retrospect this woman had
12 an illness as I described an -- abdominal
13 pain, diarrhea and fever and all of the
14 things that I mentioned before which are
15 consistent more with enteritis and
16 cholangitis.
17 Q. Doctor, is Lyme disease
18 considered to present itself in more than
19 one phase?
20 A. There can be primary and
21 secondary Lyme disease, that is,
22 somebody --
23 MR. BILLIG: It is a yes or no
24 answer to the question.
25 Q. Could you explain, please?
INTERIM COURT REPORTING
(914) 761-6600
0207
1 RICHARD S. KLEIN
2 A. Primary Lyme disease is the
3 classical rash, fever and secondary Lyme
4 disease can involve itself with neurologic
5 or cardiac problems.
6 Q. Any other phases that you are
7 aware of?
8 A. Usually the secondary phase does
9 not present with an acute type rash.
10 Q. The acute phase normally is the
11 phase that has symptoms consistent with the
12 onset of a systemic infection; is that
13 correct?
14 A. Yes, and --
15 Q. Flu-like symptoms are not
16 uncommon in the acute phase of Lyme
17 disease?
18 A. Correct.
19 Q. Would you agree that Mrs. Foley
20 exhibited signs of an acute systemic
21 intestinal infection when you hospitalized
22 her?
23 MR. IACONIS: I will object to
24 the form of the question.
25 MS. KARAMITSOS: I join in the
INTERIM COURT REPORTING
(914) 761-6600
0208
1 RICHARD S. KLEIN
2 objection.
3 A. It is a confusing question.
4 First you mentioned flu-like symptoms and
5 you mentioned Mrs. Foley. Mrs. Foley's
6 symptoms were not flu-like symptoms.
7 Q. Have you ever heard of someone
8 having an intestinal flu? Did you ever
9 hear that phrase used?
10 A. Yes.
11 Q. What is your understanding of
12 what that means?
13 A. Flu-like symptoms and intestinal
14 flu are two different things.
15 Q. What is your understanding of
16 intestinal flu?
17 A. An acute gastroenteritis which is
18 a viral inflammation of the intestine
19 causing diarrhea for a day or two.
20 Q. With a fever sometimes?
21 A. Yes.
22 Q. Dehydration sometimes?
23 A. Diarrhea is usually a day or two.
24 Q. Sometimes longer, right?
25 A. It is possible.
INTERIM COURT REPORTING
(914) 761-6600
0209
1 RICHARD S. KLEIN
2 Q. And that causes dehydration if it
3 runs longer, does it not?
4 A. It could.
5 MR. MAURER: Let the record
6 reflect that we are adjourning the
7 deposition of the doctor to a mutually
8 convenient date.
9 (TIME NOTED: 5:30 p.m.)
10 oOo
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
INTERIM COURT REPORTING
(914) 761-6600
0210
1 RICHARD S. KLEIN
2 STATE OF NEW YORK )
3 ss:
4 COUNTY OF WESTCHESTER )
5
6 I, RICHARD S. KLEIN, the witness
7 herein, having read the foregoing testimony
8 of the pages of this deposition do hereby
9 certify it to be a true and correct
10 transcript, subject to the corrections, if
11 any, shown on the attached page.
12 oOo
13
14
15 ______________________
16 RICHARD S. KLEIN
17
18
19
20 Subscribed and sworn to before me
21 this______day of___________, 19__
22 ________________________________.
23
24
25
INTERIM COURT REPORTING
(914) 761-6600
0211
1 RICHARD S. KLEIN
2 STATE OF NEW YORK ) Pg__of__Pgs
3 ss:
4 COUNTY OF WESTCHESTER )
5 I wish to make the following changes,
6 for the following reasons:
7 PAGE LINE
8 ____ ____ CHANGE: _______________________
9 REASON: _______________________
10 ____ ____ CHANGE: _______________________
11 REASON: _______________________
12 ____ ____ CHANGE: _______________________
13 REASON: _______________________
14 ____ ____ CHANGE: _______________________
15 REASON: _______________________
16 ____ ____ CHANGE: _______________________
17 REASON: _______________________
18 ____ ____ CHANGE: _______________________
19 REASON: _______________________
20 ____ ____ CHANGE: _______________________
21 REASON: _______________________
22 ____ ____ CHANGE: _______________________
23 REASON: _______________________
24 ____ ____ CHANGE: _______________________
25 REASON: _______________________
INTERIM COURT REPORTING
(914) 761-6600
0212
1
2 INDEX
3 RICHARD S. KLEIN
4
5 PAGE: LINE:
6 EXAMINATIONS CONDUCTED:
7 By Mr. Maurer 4 13
8
9 Information Requested 11 23
10 Information Requested 108 25
11 Information Requested 129 3
12
13 UNANSWERED QUESTIONS:
14 Counsel Directs Witness 76 23
15
16 Witness and Counsel confer 13 24
17 Witness and Counsel confer 21 5
18 Witness and Counsel confer 23 8
19 Witness and Counsel confer 43 13
20 Witness and Counsel confer 45 8
21 Witness and Counsel confer 57 13
22 Witness and Counsel confer 58 12
23 Witness and Counsel confer 61 7
24 Witness and Counsel confer 62 23
25 Witness and Counsel confer 70 24
INTERIM COURT REPORTING
(914) 761-6600
0213
1
2 INDEX
3 RICHARD S. KLEIN
4
5 PAGE: LINE:
6 Witness and Counsel confer 74 19
7 Witness and Counsel confer 113 25
8 Witness and Counsel confer 122 10
9 Witness and Counsel confer 151 20
10 Witness and Counsel confer 184 8
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
INTERIM COURT REPORTING
(914) 761-6600
0214
1
2 EXHIBIT INDEX
3 RICHARD S. KLEIN
4
5 NO: DESCRIPTION: PAGE:
6 1 Medical chart 40
7
8 1-A Roche Biomedical Laboratory 42
9 Lyme test dated 3/24/89
10
11 1-B Stonybrook Laboratory Report 49
12
13 1-C Lyme Test Report 62
14
15 2 Northern Westchester Hospital 84
16 Center record dated 7/30/92
17
18 3 Criteria for Notification 111
19 of Results
20
21 4 Guidelines for Telephone 114
22 Reporting of laboratory results
23
24
25
INTERIM COURT REPORTING
(914) 761-66000320
0216
1
2 SUPREME COURT OF THE STATE OF NEW YORK
3 COUNTY OF WESTCHESTER
4 -----------------------------------------------
5 Index No. 94/11520
6 ELIZABETH B. FOLEY and ROBERT J. FOLEY,
7 Plaintiffs,
8 -against-
9 DR. RICHARD S. KLEIN, et al.,
10 Defendant.
11 -----------------------------------------------
12
202 Mamaroneck Avenue
13 White Plains, New York 10601
February 21, 1996
14 10:20 A.M.
15
16
17 CONTINUED EXAMINATION BEFORE TRIAL
18 of
19 RICHARD S. KLEIN,
held at the above place and time,
20 before a Notary Public within and
for the State of New York.
21
22
23 MICHAEL CATANIA,
Reporter
24
25
WESTCHESTER REPORTING SERVICE
0217
1
2 APPEARANCES OF COUNSEL:
3
4 ELKIND, FLYNN & MAURER, P.C.
Attorneys for Plaintiffs
5 11 Martine Avenue
White Plains, New York 10606
6
BY: IRA M. MAURER, ESQ.
7
8
DU BOIS, BILLIG, LOUGHLIN, CONATY & WEISMAN
9 Attorneys for Defendants Klein and Daniels
195 Lake Louise Marie Road
10 Rock Hill, New York 12775
11 BY: JACOB BILLIG, ESQ.
12
13 WILSON, BAVE, CONBOY, COZZA & COUZENS
Attorneys for Defendant Brenner
14 2 William Street
White Plains, New York 10601
15
BY: MICHELE FOURNIER, ESQ.
16
17
RENDE, RYAN & DOWNES, L.L.P.
18 Attorneys for Defendant
Northern Westchester Hospital
19 202 Mamaroneck Avenue
White Plains, New York 10601
20
BY: PATRICIA RYAN, ESQ.
21
22
ALSO PRESENT:
23
ROBERT J. FOLEY
24
25
WESTCHESTER REPORTING SERVICE
0218
1
2 RICHARD S. KLEIN,
3 having been previously duly sworn by
4 a Notary Public within and for the
5 State of New York, was examined and
6 testified as follows:
7
8 oOo
9
10 EXAMINATION CONDUCTED
11 BY MR. MAURER:
12 Q. Good morning, Doctor.
13 A. Good morning.
14 Q. Since the date of December 6,
15 1995 when you your examination before trial
16 was started by me, have you reviewed any
17 documents or materials since that time
18 relevant to this case?
19 A. Just this morning I went over
20 whatever materials I had in my attache
21 case.
22 Q. Would I be correct that you also
23 read the transcript of December 6, 1995?
24 A. Yes.
25 Q. In its entirety?
WESTCHESTER REPORTING SERVICE
0219
1 RICHARD S. KLEIN
2 A. Yes.
3 Q. Have you prepared a transcript
4 correction sheet correcting anything within
5 that transcript up until this moment?
6 A. I have some corrections. I
7 didn't prepare a correction sheet.
8 Q. What corrections do you have?
9 A. Okay. You asked on page 108 for
10 the times of my vacation and I can now
11 supply that to you. 1992, August 1st
12 through August 21st I was away on vacation,
13 returning to work on August 21. September
14 10, in the afternoon, through Sunday the
15 13th I was on vacation.
16 Q. I am sorry. What was the last
17 thing you said?
18 A. September 10, in the afternoon,
19 through Sunday the 13th I was away on
20 vacation, 1992. On page 187 there was some
21 questioning relative to whether Mrs. Foley
22 would have come in on September 5 when I
23 insisted that she come in and there was
24 some question to the effect that you had
25 asked could I have prevented her from
WESTCHESTER REPORTING SERVICE
0220
1 RICHARD S. KLEIN
2 having Bell's palsy.
3 I believe I should have or could
4 have or did say that I could have prevented
5 sequellae, lots of times if you treat
6 somebody very early in the course of a
7 disease instead of perhaps preventing the
8 disease you can prevent sequellae. Had I
9 seen her on the day that I wanted to see
10 her there would be a good chance that I
11 would have prevented some of the sequellae.
12 Q. Where in your transcript that you
13 are telling me about -- tell me the page,
14 the line and what the answer is that you
15 wish to give instead of what is contained
16 there. I want you to tell me the language
17 that you wish to replace it with.
18 A. Yes.
19 Q. If you would be kind enough to
20 limit yourself to to doing that.
21 A. Surely.
22 MR. BILLIG: The defendant
23 obviously reserves their right to make
24 corrections to the deposition transcript
25 via affidavit as applicable pursuant to the
WESTCHESTER REPORTING SERVICE
0221
1 RICHARD S. KLEIN
2 CPLR at a future date when the transcript
3 from today's deposition is delivered and
4 all transcripts can be gone over in their
5 entirety. To the extent that counsel wants
6 to go through that now, counsel can.
7 Whatever corrections the doctor makes today
8 will not be limited to corrections that may
9 be made subsequently by affidavit pursuant
10 to the CPLR.
11 MR. MAURER: I will reserve my
12 right to request an additional examination
13 of the defendant should he change any
14 testimony from December 6, 1995 after
15 today. That's why I am asking him and he
16 has indicated that he reviewed the
17 transcript and is obviously prepared to
18 tell me what corrections he has. I want to
19 have the chance to ask him about it. I
20 want to reserve my rights.
21 MR. BILLIG: The doctor has to
22 some extent consulted with counsel
23 concerning that in an effort to move ahead
24 with the proceedings and discovery. We are
25 allowing this dialogue to engage but we
WESTCHESTER REPORTING SERVICE
0222
1 RICHARD S. KLEIN
2 still reserve our rights.
3 Q. With respect to 187 tell me the
4 line where there is an error that you wish
5 to correct and tell me the corrections that
6 you wish to make word for word?
7 A. Where the answer is "no," I
8 didn't say that.
9 Q. That is line 14 on page 187?
10 A. I would have -- "it would have
11 been very possible to prevent some of the
12 sequellae of her disease." Page 201, line
13 25, second word, should be "would not agree
14 with you." Page 205, line 19, illness
15 stones in the common duct. The word
16 "chronic" duct is wrong. It should be
17 "common" duct.
18 Q. Anything else, Doctor?
19 MR. BILLIG: Off the record.
20 MR. MAURER: On the record,
21 please.
22 MR. BILLIG: I can talk to my
23 client.
24 MR. MAURER: You can have an
25 off-the-record conversation with him.
WESTCHESTER REPORTING SERVICE
0223
1 RICHARD S. KLEIN
2 MR. BILLIG: Fine. I am
3 conferring with my client.
4 (Witness and counsel confer.)
5 A. As far as reading it this
6 morning, that is the best I can do right
7 now.
8 Q. Doctor, please don't put the
9 condensed transcript away. Is today the
10 first time that you have read the
11 transcript from December 6, 1995 of your
12 deposition on that date?
13 MR. BILLIG: Objection. Asked
14 and answered. He said he reviewed it prior
15 to today.
16 Q. How many times have you reviewed
17 the transcript?
18 A. This is probably the second time.
19 Q. When did you receive the
20 condensed transcript that you were just
21 looking at?
22 MR. BILLIG: A week or two
23 after the deposition.
24 Q. Did you mark the condensed
25 transcript in the sections of the
WESTCHESTER REPORTING SERVICE
0224
1 RICHARD S. KLEIN
2 transcript that you thought needed
3 correcting?
4 A. I did.
5 Q. When did you mark it, when you
6 first read it?
7 A. Yes.
8 Q. Did you mark it again today or
9 just the first time around?
10 A. The first time.
11 Q. May I see the transcript, please?
12 MR. BILLIG: No. You can't.
13 Those markings are made by him for his
14 attorney. You cannot see it. If you want
15 to go for a ruling you can go for a ruling
16 now on it. These are his writings that he
17 makes. When your clients makes a note at
18 the deposition I don't get to see those
19 notes.
20 MR. MAURER: There is nothing
21 contained in this condensed transcript from
22 counsel.
23 Q. Am I correct, doctor?
24 MR. BILLIG: No. No. Don't
25 answer the question. These notes were made
WESTCHESTER REPORTING SERVICE
0225
1 RICHARD S. KLEIN
2 by him pursuant to my request in going
3 through the transcript to make whatever
4 changes. That's all.
5 MR. MAURER: So --
6 MR. BILLIG: It is
7 attorney-client privilege period. That's
8 it. We made an effort this morning to go
9 through some of the changes as indicated to
10 you on the record before we will respond in
11 the form way that it is done in an
12 affidavit. You have reserved your right to
13 take a further deposition if so deemed by a
14 court.
15 Q. Doctor, when you read through the
16 transcript of your deposition the first
17 time and made the notations in the
18 condensed transcript, where were you,
19 office, home; where were you?
20 MR. BILLIG: Or more than one
21 location. I will object to the form of the
22 question. That is assuming the changes
23 were made in one location.
24 MR. MAURER: I object to your
25 leading this witness and interfering and
WESTCHESTER REPORTING SERVICE
0226
1 RICHARD S. KLEIN
2 obstructing the deposition. We will stop
3 if you continue.
4 MS. FOURNIER: Note my
5 objection. This is completely
6 inappropriate.
7 MS. RYAN: It is.
8 MR. BILLIG: We have given you
9 a bit of leeway. If he reviewed it in the
10 first part of the day at his office and the
11 second part was reviewed at his home. I am
12 stating to you on the record that he did it
13 at my request.
14 MS. FOURNIER: He had a
15 certain amount of time to respond. This is
16 completely objectionable.
17 MS. RYAN: Absolutely.
18 MR. MAURER: Counsel, how much
19 time does he have to respond?
20 MR. BILLIG: Whatever the CPLR
21 says.
22 MR. MAURER: That's right, and
23 it is long gone. All three of you are
24 ganging up on me now.
25 MS. FOURNIER: It is
WESTCHESTER REPORTING SERVICE
0227
1 RICHARD S. KLEIN
2 inappropriate.
3 MR. MAURER: Tell me how many
4 days he has to make a correction on record.
5 MS. FOURNIER: This is not my
6 deposition.
7 MR. MAURER: Then don't
8 interfere in it.
9 MS. RYAN: Note my objection
10 as well.
11 MR. BILLIG: Is it from the
12 completeness of the entire transcript when
13 he is done? We don't know what you are
14 going to ask him today. You may ask him
15 questions today that were relating to
16 subjects contained in December 6. This is
17 the continuation of a deposition from
18 December 6.
19 MR. MAURER: So?
20 MR. BILLIG: When the
21 deposition of the client, the witness today
22 is completed hopefully today we will
23 execute an affidavit pursuant thereto. He
24 gave you some of the changes in an effort
25 to move this thing along.
WESTCHESTER REPORTING SERVICE
0228
1 RICHARD S. KLEIN
2 MR. MAURER: At the last
3 deposition you stepped out of this
4 conference room numerous times and
5 interrupted the examination and then he
6 changed his testimony. I don't want to be
7 put in the position of having somebody
8 changing testimony left and right in an
9 inappropriate manner. I don't think it is
10 appropriate under any rule or regulation in
11 New York State for counsel to obstruct the
12 questioning of a witness. There is
13 absolutely nothing wrong with my asking him
14 questions about reading the transcripts and
15 the corrections he wrote.
16 MR. BILLIG: You did.
17 MR. MAURER: I am entitled to
18 know what corrections he felt should be
19 made.
20 MR. BILLIG: He gave you
21 those. Anything else will be done pursuant
22 to affidavit.
23 MR. MAURER: I want that
24 marked for identification.
25 MR. BILLIG: What the --
WESTCHESTER REPORTING SERVICE
0229
1 RICHARD S. KLEIN
2 MR. MAURER: The condensed
3 transcript which he marked which you took
4 from him while we were engaging in this
5 colloquy, I want it marked for
6 identification.
7 (Klein Deposition Exhibit 5 was
8 marked for identification. Exhibit
9 retained by counsel.)
10 MR. BILLIG: I am agreeing to
11 have this marked for identification and in
12 no way waive any rights, rights that I
13 previously alluded to with respect to
14 attorney-client privilege. You know
15 something, I think by marking it, it is
16 waiving those rights.
17 MR. MAURER: I will stipulate
18 that you are not waiving your rights by
19 doing it on the record.
20 MR. BILLIG: What is the
21 purpose of marking it?
22 MR. MAURER: For a future
23 ruling. I am telling you right now that it
24 is my position that you are not obligated
25 to provide a copy of this exhibit merely
WESTCHESTER REPORTING SERVICE
0230
1 RICHARD S. KLEIN
2 because it is being marked. I understand
3 that you preserve your rights and you will
4 only have to do so if the court so orders.
5 I am not looking to pull a fast one.
6 MR. BILLIG: That's fair. In
7 an effort to move ahead and get done
8 today. As long as counsel stipulates that
9 all the attorney-client privileges are
10 maintained and the document is not being
11 looked at and the front cover of it is
12 being marked for identification
13 BY MR. MAURER:
14 Q. Doctor, what has been marked for
15 identification as Plaintiff's Exhibit
16 No. 5, the condensed transcript of your
17 deposition from December 6, 1995 contain
18 all of your notes pertaining to corrections
19 that you believe have to be made to that
20 transcript as of the present date?
21 A. Probably.
22 MR. MAURER: I would ask that
23 this exhibit be preserved and that any
24 additional corrections be noted on a
25 separate copy of this document so that it
WESTCHESTER REPORTING SERVICE
0231
1 RICHARD S. KLEIN
2 remains in its present form, counsel.
3 MR. BILLIG: The corrections
4 that will be made to the deposition will be
5 done pursuant to the requirements of the
6 CPLR.
7 MR. MAURER: I didn't
8 understand that. This is an exhibit. I am
9 asking you to preserve the exhibit in its
10 present form.
11 MR. BILLIG: Whether the
12 doctor has made a note on the page or has
13 folded a page is something that he and I
14 discussed. There were pages here that we
15 have folded over but there is not a
16 specific note saying change this to that.
17 Your question really was improper in form.
18 It assumes that all changes that want to be
19 made to date by the doctor are written in
20 the document. That's just not the case.
21 As I indicated to you before,
22 when the deposition is hopefully completed
23 today we will respond to -- we will make
24 the changes pursuant to the CPLR. That's
25 all. I don't want the record to reflect
WESTCHESTER REPORTING SERVICE
0232
1 RICHARD S. KLEIN
2 that any changes that the doctor wants to
3 make at this date are only indicated by
4 writings on the page that he wants to make
5 changes because in my discussions with my
6 client, which I will not reveal --
7 MR. MAURER: You are doing so
8 in front of him on the record.
9 MR. BILLIG: I am not
10 indicating the substance.
11 MR. MAURER: You are
12 indicating very clearly how you wanted your
13 client to follow your lead, which is a
14 continuation of your practice on
15 December 6, 1995. The record reflect what
16 you have done. Let's keep going.
17 MR. BILLIG: That's your
18 opinion.
19 BY MR. MAURER:
20 Q. With respect to your corrections
21 on page 187, line 14, where you said it
22 would have been very possible to prevent
23 some of the sequellae of Mrs. Foley's
24 disease, could you explain what you mean by
25 that.
WESTCHESTER REPORTING SERVICE
0233
1 RICHARD S. KLEIN
2 A. Often times if you treat an
3 infectious disease early in its course with
4 an antibiotic appropriately you can often
5 times prevent some of the sequellae.
6 Q. What is the basis for your
7 correction in which you state that it is
8 very possible that you could have prevented
9 some of the sequellae of her disease?
10 MR. BILLIG: Note any
11 objection to the form of the question. You
12 asked him to begin with what corrections
13 did he want to make in order to have more
14 complete answers. That's what he told
15 you. I don't know what you mean by basis.
16 MR. MAURER: I didn't want to
17 know what the factual basis is for his
18 statement.
19 A. It is a common medical phenomenon
20 that if you treat a disease early in its
21 course that you get a better outcome than
22 if you treat it late. If you treat Lyme
23 disease early with intravenous antibiotic
24 or Bell's palsy rather that is secondary to
25 Lyme disease with intravenous you will have
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2 a better result.
3 Q. Are you aware of any case with
4 respect to Bell's palsy and Lyme disease
5 that specify or state in substance if not
6 verbatim that if you treat a Lyme disease
7 patient with central nervous system
8 involvement within a certain number of days
9 that the Bell's palsy component of the
10 disease can be prevented?
11 A. Specifically off the top of my
12 head, no. However -- no.
13 Q. What sequellae of the Lyme
14 disease condition Mrs. Foley developed are
15 you testifying could have very possibly
16 have been prevented?
17 A. If I remember correctly
18 Mrs. Foley had Bell's palsy and that the
19 resulting drooping of her side of her face
20 could probably have dissipated as well as
21 the occurrence of pain for neuritis in one
22 of her arms. It probably would not be
23 there after she was treated.
24 Q. How long, to your knowledge, must
25 a patient who has signs of Bell's palsy
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2 related to Lyme disease, how long should
3 such a patient be on intravenous antibiotic
4 therapy before you can reasonably expect
5 drooping of the face symptoms to disappear?
6 A. I didn't say that.
7 Q. I asked you a question. Can you
8 answer it in its present form?
9 A. I don't know what you said. I
10 don't understand what you said. It had
11 nothing to do with what we were talking
12 about.
13 Q. What is it about my question that
14 you did not understand?
15 MR. BILLIG: He told you that
16 he does not understand the question.
17 MR. MAURER: I want to know
18 what part he did not understand so that I
19 can rephrase it.
20 MR. BILLIG: I think he said
21 that it did not relate to what he said.
22 A. We were talking about treating
23 somebody early in the disease and you are
24 talking about the length of treatment which
25 has nothing to do -- unless you want me to
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2 talk about length of treatment.
3 Q. Doctor, the correction on page
4 187 that you have testified to was in
5 response to my question on line 7 that said
6 is it your testimony that if you had seen
7 her on 9/5/92 at 11 o'clock in the morning
8 that you could have prevented her from
9 having Bell's palsy. You said prevented
10 her from having Bell's palsy with a
11 question mark and I said yes and you said
12 no I didn't say that. Then I said I wanted
13 to clarify it.
14 A. You said, okay, now you changed
15 it.
16 Q. No, I didn't say that to what you
17 have testified to today that you believe it
18 was very possible that you could have
19 prevented some of the sequellae of her
20 disease such as drooping of the face, for
21 example. So, your response was to a
22 question having to do with having had a
23 chance to see Mrs. Foley on 9/5/92 could
24 you have prevented part of her Bell's palsy
25 condition from developing. What I am
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2 trying to do now is find out how long, to
3 your knowledge, does somebody have to be on
4 intravenous antibiotic for central system
5 Lyme disease to prevent them from
6 developing Bell's palsy, if you know, and
7 specifically the drooping of the face which
8 is what you have identified?
9 MR. BILLIG: The problem that
10 I have with your question and the form that
11 it is presented, he did not testify that he
12 could have prevented.
13 MR. MAURER: He said that it
14 is very possible.
15 MR. BILLIG: It is possible to
16 prevent some of it.
17 MR. MAURER: He said that it
18 was very possible that he could have
19 prevented the drooping of the face.
20 How long would she would have
21 been on intravenous antibiotics had she
22 come to see him on 9/5/92 in order to
23 prevent drooping the face?
24 A. You are using the words drooping
25 of the face.
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2 Q. That was your language, as a
3 sequellae, not as the original disease. On
4 September 5 Mrs. Foley did not have
5 drooping of the face in the morning. Had I
6 seen her in the morning and had she given
7 me the history that I know now I would have
8 started her on intravenous antibiotic after
9 having a lumbar puncture done. I may not
10 have prevented her from continuing and
11 developing the disease called Bell's
12 palsy. However, her residual symptoms and
13 signs of drooping of her face would have a
14 better chance of not being there today had
15 she come in and been treated when she was
16 supposed to.
17 Q. What I am trying to find out from
18 you now is how long would you have had to
19 have put Mrs. Foley on intravenous
20 antibiotics after the lumbar puncture that
21 you mentioned in order to have a very -- in
22 order for it to be very possible that you
23 could have prevented the drooping of the
24 face?
25 A. Okay.
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2 MR. BILLIG: Note my objection
3 to the form of the question. He is not
4 testifying that he could have prevented
5 it. That's the way the question is formed.
6 MR. MAURER: I am using his
7 own language, his correction.
8 MR. BILLIG: I don't know if
9 you are accurate in what you say that he
10 testified to and clearly his last answer
11 qualified it. He has not testified that he
12 could have prevented it.
13 MR. MAURER: I would like to
14 have an answer to the question.
15 MR. BILLIG: Note my
16 objection.
17 A. Okay. I did not say that there
18 was a certain period of time of intravenous
19 antibiotic therapy that would have
20 prevented any sequellae. The treatment is
21 21 days. What I said is, if you treat a
22 person early on before the symptoms have
23 begun then you have a better chance of
24 having the symptoms not remain. You are
25 asking me a question about something that I
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2 did not say.
3 Q. Can you state with any reasonable
4 degree of medical certainty that had you
5 seen Mrs. Foley on September 5, 1992 and
6 received the information that you have just
7 referred to in your prior response and sent
8 her for a spinal tap and started her on
9 intravenous antibiotics that you could have
10 very possibly prevented her from developing
11 a drooping of the face. Is that your
12 testimony?
13 A. A residual drooping of the face.
14 Q. Is that your testimony?
15 A. I said a res -- yes.
16 Q. Within a reasonable degree of
17 medical certainty you are stating that?
18 A. Yes, darn right, I am.
19 Q. I would like to know the factual
20 basis for that statement.
21 A. Many years of taking care of
22 patients who have infectious diseases.
23 Q. Are you basing it all on your
24 experience in treating a Lyme disease
25 patient with Bell's palsy?
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2 A. I am basing it on taking care of
3 many different types of infectious
4 diseases.
5 Q. I am asking if you are basing it
6 in part on treating any Lyme disease
7 patient with Bell's palsy?
8 A. Yes.
9 Q. How many?
10 A. 2 specifically.
11 Q. When were those patients treated,
12 approximately?
13 A. Two to three years ago.
14 Q. Is this before or after the time
15 period in question in the summer of 1992
16 involving Mrs. Foley?
17 MR. BILLIG: August/September
18 1992?
19 A. It is my experience -- it is my
20 practice that anybody who presents with
21 signs or symptoms of Bell's palsy in the
22 past five or six years is to get an
23 immediate lumbar puncture and if there is
24 any abnormality of the spinal fluid to
25 institute intravenous antibiotic therapy.
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2 So anybody who would have come in the past
3 five years would have been treated that
4 way. I specifically remember two people
5 who I did treat that way who do not have
6 any residual sequellae.
7 Q. Doctor, is it your testimony that
8 within the medical community in which you
9 practice medicine in August/September 1992
10 the appropriate course of conduct for a
11 physician who sees a patient who is present
12 with signs of Bell's palsy would be to do
13 an immediate lumbar puncture?
14 A. I believe that there is -- I
15 don't know the answer to that.
16 Q. Your prior response was in
17 substance and not verbatim that I believe
18 it is within your experience in the last
19 five or six years that anybody presenting
20 with the signs of Bell's palsy should have
21 an immediate lumbar puncture and if there
22 is any abnormality in the spinal fluid that
23 she should be started on intravenous
24 antibiotics?
25 A. That is what I said. That's what
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2 I would do.
3 Q. Is it your standard practice in
4 your regard that you would follow
5 consistent with the standards within the
6 medical community in which you were
7 practicing in August and September of 1992?
8 A. I don't know. I don't remember
9 what people were doing in 1992.
10 Q. Why would you have followed that
11 procedure in August/September 1992?
12 A. That was my practice as a
13 specialist in infectious diseases.
14 Q. Doctor, have you read through the
15 emergency room records of Northern
16 Westchester Hospital Center pertaining to
17 Mrs. Foley's emergency treatment in
18 September 1992?
19 A. Yes.
20 Q. Have you --
21 A. We discussed that already.
22 Q. I want to follow up for a moment
23 on what we are discussing at the present
24 time. Did the emergency room records that
25 you reviewed indicate that Mrs. Foley
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2 presented with signs and symptoms
3 consistent with Bell's palsy?
4 A. Do you mind if I look --
5 Q. Please, look at anything you need
6 to look at, Doctor. Just please identify
7 for the record what you are looking at in
8 order to refresh your memory.
9 MR. BILLIG: I handed the
10 doctor a photocopy of the September 4
11 emergency -- I am sorry, September 5 ER --
12 A. It was an emergency room visit of
13 September 5.
14 MR. BILLIG: 5:54 p.m.
15 A. The diagnosis of Bell's palsy and
16 Lyme disease was made which was on the
17 evening of the day that I wanted to see
18 Mrs. Foley in the morning. She presented
19 in the evening to the emergency room.
20 Q. What was done according to this
21 record for Mrs. Foley in the emergency room
22 on that day?
23 A. Okay. A blood titre was taken
24 for Lyme disease and she was started on
25 oral antibiotics. It is something that I
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2 would not have done.
3 Q. Why would you have not done that,
4 which one of the two things would you not
5 have then done or both?
6 A. I would have done what I told you
7 I would have done had a patient come to my
8 office or had I seen a patient in
9 consultation. I would have done a lumbar
10 puncture because of the history of Lyme --
11 of the patient presenting with Lyme
12 disease. The patient presented with a
13 clinical syndrome of Lyme disease and
14 Bell's palsy.
15 Q. Would you have started Mrs. Foley
16 on oral antibiotics immediately like the
17 emergency room did on September 5, 1992?
18 A. I just answered no.
19 Q. Why is it that you would not have
20 started her on --
21 A. I already answered that question.
22 Q. I am not sure that I am clear on
23 what you are stating. I would like to
24 clarify it. Why would you not have started
25 Mrs. Foley on antibiotics on September 5,
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1 RICHARD S. KLEIN
2 1992?
3 A. I didn't say that either.
4 Q. Why is it that you would not have
5 started Mrs. Foley on antibiotics prior to
6 getting the lumbar puncture results?
7 A. I answered before that anybody
8 who has acute Lyme disease with the finding
9 of Bell's palsy deserves a lumbar puncture,
10 in my opinion, because if there is any
11 abnormality in the patient's spinal fluid
12 then the patient ought to be treated with
13 intravenous antibiotics which gets a higher
14 dosage much quicker and has a chance of
15 preventing any of the sequellae of Bell's
16 palsy.
17 Q. Why do you treat Bell's palsy in
18 a patient where it is considered secondary
19 to an underlying Lyme disease condition
20 with intravenous antibiotics rather than
21 oral antibiotics?
22 A. Because the --
23 MR. BILLIG: Was that not
24 asked and answered already?
25 MR. MAURER: Not the way I
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1 RICHARD S. KLEIN
2 just asked it.
3 A. Neurologic Lyme -- Bell's palsy,
4 and if one has Lyme disease then Bell's
5 palsy is a neurologic consequence of the
6 Lyme disease. Neurologic consequences of
7 Lyme disease are treated with intravenous
8 antibiotics to get a high level of the
9 antibiotic in the spine which you cannot
10 attain by oral antibiotics.
11 Q. Why not?
12 A. You can't give that much.
13 Q. Why can you not get the high
14 enough --
15 A. The cerebral spinal fluids of an
16 antibiotic cannot be given that much by
17 mouth. You have to give it intravenously.
18 Q. What is there about the human
19 body which prevents you from obtaining a
20 high enough level of the antibiotic in the
21 person's cerebral spinal fluid if you give
22 it orally versus intravenous?
23 A. Two things; number one, the body
24 cannot absorb that much. You have to give
25 30 or 40 pills to the patient to swallow at
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2 once which is not very comfortable and
3 there is the blood brain barrier which
4 causes the transference of antibiotic from
5 the serum into the cerebral spinal fluid.
6 Q. Bell's palsy in a Lyme disease
7 patient is a manifestation of the disease
8 effecting the patient's central nervous
9 system?
10 A. That is correct.
11 Q. Do all Lyme disease patients with
12 central nervous system involvement
13 demonstrate abnormality in their spinal
14 fluid when the same is tested following a
15 spinal tap?
16 MR. BILLIG: That was asked
17 and answered in the last deposition I
18 think.
19 MR. MAURER: I don't recall.
20 I am not trying to go back over the entire
21 deposition.
22 MR. BILLIG: Okay.
23 MR. MAURER: I would like to
24 get an answer.
25 MR. BILLIG: Do you understand
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1 RICHARD S. KLEIN
2 the question?
3 THE WITNESS: Yes. I
4 understand the question.
5 The answer is I believe most -- I
6 don't know what percentage of people will
7 have a positive spinal tap, however, most
8 would for abnormal cells.
9 Q. What is the basis for your
10 response that most would have an abnormal
11 cell count?
12 A. From experience.
13 Q. What is in about your experience
14 that leads you to state that?
15 A. The study of infectious diseases
16 of the cerebral spinal fluid, the study of
17 meningitis and the study of patients who
18 have neurologic Lyme disease.
19 Q. What is there about the way Lyme
20 disease effects the central nervous system
21 that causes the patient to develop Bell's
22 palsy?
23 MR. BILLIG: Note my
24 objection. I think this was already asked
25 and answered.
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1 RICHARD S. KLEIN
2 MR. MAURER: I don't think
3 so.
4 MR. BILLIG: Didn't you ask
5 him before. He testified that this can be
6 a by-product of.
7 MR. MAURER: I am asking what
8 happens that causes a Lyme disease patient
9 with central nervous to develop Bell's
10 palsy if they in fact do?
11 A. The abnormality of the cerebral
12 spinal fluid is not the cause of the Bell's
13 palsy, it is the abnormality of the
14 infection, a certain specific part of the
15 brain that causes the Bell's palsy.
16 Abnormality of certain nonspecific cells
17 are subsequently found as a result of the
18 infection of the neurologic part of the
19 brain.
20 Q. What is happening to certain
21 parts of the brain that causes the Lyme
22 disease patient's central nervous system to
23 develop Bell's palsy, if they do?
24 A. Certain parts of the brain become
25 inflamed with infection.
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2 Q. You are saying brain tissue
3 becomes inflamed and infected by the
4 bacteria?
5 A. That is correct.
6 Q. Do you know how long it takes
7 from the time the bacteria that causes Lyme
8 disease has infected and inflamed the brain
9 for a patient to develop the Bell's palsy
10 component if they are going to?
11 A. I would imagine it could be -- it
12 could be anywhere between a day and a
13 couple of weeks, a day to a couple -- to a
14 month.
15 Q. If a Lyme disease patient has
16 been exposed to the bacteria that causes
17 Lyme disease for over a month and they are
18 given intravenous antibiotics just before
19 they are about to develop the signs of
20 Bell's palsy such as drooping of the face,
21 how likely would it be in your experience
22 that the administration of the intravenous
23 antibiotics in that scenario would make it
24 very possible that the permanent sequellae
25 of the Bell's palsy could be limited or
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2 avoided?
3 MR. BILLIG: Objection to
4 form. I don't know what you mean by just
5 before. I don't know what that means. I
6 can't let him answer the question in that
7 form. Not only that, I think that he has
8 gone into this.
9 MR. MAURER: I understand
10 that. Now I have gone further into the
11 whole subject matter. I want to revisit it
12 asking it with specifics that are
13 consistent with this case.
14 MR. BILLIG: I believe that
15 you are re-asking the same question. In
16 addition to the problem with the form that
17 I have, I mean that he has indicated to you
18 and he has testified on this subject matter
19 before.
20 Q. Doctor, would you agree with me
21 that the longer a Lyme disease patient is
22 exposed to the bacteria that causes Lyme
23 disease untreated and the longer that it is
24 infecting the patient's central nervous
25 system the less likely it would be that you
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1 RICHARD S. KLEIN
2 could prevent that patient within a day or
3 two of treatment with intravenous
4 antibiotics from developing the type of
5 symptoms Mrs. Foley developed --
6 MR. BILLIG: Note my --
7 Q. -- with regard to Bell's palsy?
8 MR. BILLIG: Note my objection
9 to the form of the question. He started
10 the deposition by talking about that. He
11 has testified already to the probabilities
12 of treatment, and the problem that I have
13 with the form of the question is the
14 ambiguity that is inflicted in it in terms
15 of there is no temporal setting in order
16 for him to answer the question. I don't
17 understand when it is beginning and all of
18 the different --
19 MR. MAURER: Let's lay a
20 foundation so that you will not have a
21 problem.
22 Q. Based upon everything that you
23 currently know about the history of
24 Mrs. Foley's Lyme disease illness and its
25 manifestations, when do you believe that
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2 she first exhibited signs of the illness?
3 A. Mrs. Foley exhibited signs of
4 acute Lyme disease the night before the
5 5th -- is it 4th, I believe when she went
6 to see her eye doctor or when she developed
7 problems with her eye that brought her --
8 with the rash on her face that are signs
9 and symptoms of acute Lyme disease. They
10 were left untreated appropriately. The
11 patient was asked to come in the next day
12 to my office on September 5. She refused.
13 I am answering your question and
14 you are shaking your head.
15 Q. You are going beyond the
16 question. We will get back much quicker if
17 you listen to the question and answer the
18 question?
19 MR. BILLIG: Read back to him
20 where he was.
21 THE WITNESS: I want to hear
22 the question.
23 MR. MAURER: Off the record.
24 (Discussion off the record.)
25 MR. MAURER: I have a
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2 continuing objection to Dr. Klein's
3 counsel, Mr. Billig, making speaking
4 objections on the record under the guise of
5 trying to help me cure an objection as to
6 form of a question. What is actually
7 happening is counsel is telegraphing to his
8 client his concerns and tainting the
9 testimony and preventing me from getting a
10 clean record of what this witness knows or
11 does not know factually. If this continues
12 I am going to have no alternative but to
13 stop the deposition. There is no point in
14 putting a lot of colloquy on record. You
15 have indicated to me you don't think that
16 you are doing it. I think that speaking
17 objections are improper.
18 MR. BILLIG: Your statement is
19 to be deemed all inconclusive and factuall
20 incorrect as to what occurred. I think
21 not. On December 6 there were several off
22 the record discussions between plaintiff's
23 counsel and myself in an effort to move the
24 deposition along, clarify those questions
25 that I believed were in an improper form in
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2 order to complete the doctor's deposition
3 and in order to let the plaintiff get the
4 information that they are entitled to. I
5 don't believe that there is any obstruction
6 going on. I disagree with counsel's
7 conclusion. Again, I would reference the
8 record as it has been made along with the
9 off-the-record discussions which were
10 numerous on the 6th of December in order to
11 move the deposition along.
12 MR. MAURER: Would you be kind
13 enough to read back the last question.
14 (Record read as requested.)
15 MR. MAURER: I would move to
16 strike those portions of the response which
17 were not responsive to the question. I
18 think it was appropriate up until the point
19 where he started to give opinions that went
20 beyond the question.
21 MR. BILLIG: Did you finish
22 your answer? Let's move ahead.
23 Q. When in your opinion based upon
24 what you know about Mrs. Foley up until the
25 present time, when did Mrs. Foley contract
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2 Lyme disease?
3 A. Mrs. Foley contracted Lyme
4 disease either on the 4th of September or
5 sometime prior to that -- sometime shortly
6 prior to that.
7 Q. What is the earliest date you
8 believe that Mrs. Foley contracted Lyme
9 disease?
10 A. Sometime the week before she --
11 sometime the week before she presented with
12 this rash on her face or maybe a day or two
13 before.
14 Q. You are saying the last couple of
15 days of August 1992 or the beginning of
16 September 1992?
17 A. Beginning of September.
18 Q. Doctor, how long does it take for
19 Lyme disease patients to develop
20 disseminated disease with Bell's palsy as a
21 component?
22 MR. BILLIG: Asked and
23 answered. Didn't he say a week to a month
24 or a day to a month. He said that to an
25 earlier question. That's the exact same
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2 question.
3 Q. Is that your answer?
4 A. Anywhere from a day to a month.
5 Q. What is the basis for that
6 statement that you can get Bell's palsy a
7 day after contracting Lyme disease?
8 MR. BILLIG: He said a day to
9 a month. I will object to form.
10 Q. What is the basis for your answer
11 that you can get Bell's palsy with Lyme
12 disease a day after contracting the
13 disease? That's the one part of the
14 spectrum he included?
15 MR. BILLIG: The question
16 before asked how long and he said a day to
17 a month. His testimony is such that it is
18 a day to a month. He never testified you
19 can get it in just a day.
20 Q. Doctor, did you not tell me that
21 you can get Bell's palsy within a day of
22 contracting Lyme disease?
23 A. It is possible, yes.
24 Q. What is the basis for that
25 statement?
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2 A. Clinical experience.
3 Q. What about your clinical
4 experience that you have experienced would
5 lead you to conclude that you can develop
6 Bell's palsy within a day of contracting
7 Lyme disease?
8 A. It is just a clinical feeling
9 that I have.
10 Q. What is the basis for that
11 clinical feeling?
12 A. Experience of taking care of many
13 patients with all different types of
14 infectious diseases effecting their
15 cerebral -- effecting their neurologic
16 system.
17 Q. Do you have any experience with
18 any Lyme disease patients who contracted
19 Bell's palsy within a day after you thought
20 they contracted Lyme disease?
21 A. I have one --
22 MR. BILLIG: You are referring
23 to the two?
24 MR. MAURER: Any experience.
25 A. Yes.
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2 MR. BILLIG: He testified
3 before that there were two experiences that
4 he had.
5 MR. MAURER: That had to do
6 with other things that he made reference
7 to. It had to do with the impact of
8 antibiotic therapy on the Bell's palsy
9 sequellae.
10 Q. How many patients have you had,
11 Doctor, where, in your opinion, they
12 contracted Lyme disease and had Bell's
13 palsy the next day?
14 A. I am sorry. You asked me if it
15 was possible that you could get Lyme
16 disease and Bell's palsy the day after
17 coming in contact with Lyme disease and I
18 answered that it is possible. Have I ever
19 seen somebody like that? I think maybe the
20 earliest was about two to three days.
21 Q. How many people have you seen
22 where they got Bell's palsy two to three
23 days after contracting Lyme disease?
24 A. One off the top of my head.
25 Q. Are there any others that you can
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2 think of, and take a moment, doctor?
3 A. One off the top of my head.
4 Q. When was that?
5 A. About two or three years ago.
6 Q. That's someone that you treated?
7 A. Somebody that I had treated, yes.
8 Q. How old was this patient?
9 A. 17.
10 Q. Where did the patient live?
11 A. Yorktown.
12 Q. Male or female?
13 A. Male.
14 MR. MAURER: Off the record.
15 (Discussion off the record.)
16 Q. Have you read anything in any
17 medical publications, journals, anything of
18 that nature which documented any Lyme
19 disease expert's experience of having
20 contact with a Lyme disease patient who
21 developed Bell's palsy within two to three
22 days after contracting Lyme disease?
23 A. I think that you are mixing up
24 Lyme disease with infectious diseases.
25 Lyme disease follows a pattern of
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2 infectious diseases and there are many
3 infectious diseases and the bacteria which
4 follow the pattern that I have mentioned.
5 Q. I want you to assume that all of
6 my questions deal with Lyme disease.
7 MR. BILLIG: He is asking you
8 a yes or no answer to the question.
9 Have you read any publications?
10 A. No.
11 Q. So that you are unaware of any
12 publications of that nature as you sit here
13 today; is that fair to say?
14 A. Correct.
15 MR. BILLIG: I would advise
16 you to listen to the question and just
17 answer the question. Yes or no and we will
18 move along much faster.
19 Q. While we are on the topic.
20 I served upon your attorney a
21 supplemental notice for discovery and
22 inspection dated January 22, 1996. I will
23 mark this as Plaintiff's Exhibit No. 6.
24 (Klein Deposition Exhibit 6 was
25 marked for identification. Exhibit
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1 RICHARD S. KLEIN
2 retained by counsel.)
3 BY MR. MAURER:
4 Q. Doctor, have you seen what has
5 been marked for identification as
6 Plaintiff's Exhibit No. 6 before today?
7 A. No.
8 Q. You saw the document that I have
9 had marked for identification as Klein
10 Exhibit No. 6 prior to starting the
11 deposition today; is that correct?
12 A. That is correct.
13 Q. Okay. Have you undertaken to
14 locate any of the materials asked for
15 within this notice for discovery and
16 inspection prior to today?
17 A. Number one, copies of articles in
18 my home file. I believe I brought in those
19 copies this morning which I found.
20 Q. Your attorney has handed me a
21 pile of articles, is that what you are
22 referring to in your last response?
23 A. Yes. Those are the ones that I
24 quickly found this morning.
25 Q. Where did you look?
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2 A. In my file under Lyme disease.
3 Q. Did you go through the entire
4 file this morning?
5 A. Yes. That's --
6 Q. You said quickly look. I want to
7 make sure that there is not something else
8 that you did not look at?
9 A. I lot of times I have articles
10 that are cross-referenced under Lyme
11 disease, under tick borne disease. These
12 are the articles that were in my Lyme
13 disease folder.
14 MR. BILLIG: And the dates we
15 just give you?
16 A. The dates I gave you. I don't
17 have copies of records but I gave you the
18 specific dates that I was on vacation in
19 1992.
20 Q. Where did you get that
21 information from?
22 A. From my secretary.
23 Q. Where did she get the information
24 from?
25 A. From the appointment schedule
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2 that I have in my office.
3 Q. I would ask you keep that
4 appointment schedule that your secretary
5 looked at to provide you the information.
6 I will ask you to save that until the time
7 of trial and make sure that it doesn't get
8 thrown out. Is there any reason for you to
9 throw it out?
10 A. I don't think so.
11 MR. MAURER: I would make that
12 request.
13 ** INFORMATION REQUESTED TO BE SUPPLIED:
14 --------------------------------------
15 Q. With respect to number three,
16 copies of all articles, letters or other
17 publications prepared by Dr. Klein or
18 Dr. Daniels on the subject of Lyme disease,
19 are there any?
20 A. I believe you are aware of one,
21 an article that appeared in the newspaper.
22 Q. Are there any others?
23 A. The full text of the copy that
24 you have from a newspaper has been
25 published in other journals. You only have
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2 a short condensed version of it. That was
3 an 8-page or 7-page article that the
4 newspaper condensed.
5 Q. Where is the full rendition or
6 version of the article that the paper, the
7 Gannett suburban newspaper condensed?
8 A. I have a copy of it someplace.
9 Q. It was not in your Lyme disease
10 file?
11 A. Probably it would be in my
12 article file.
13 Q. Other than this one particular
14 article which was published in a condensed
15 version by the Gannett papers on March 27,
16 1995, is there anything else that you have,
17 or your partner Dr. Daniels, has published
18 in the way of an article or letters or
19 anything like that on the subject of Lyme
20 disease?
21 A. As far as myself, I don't
22 believe. However, I cannot answer for
23 Dr. Daniels.
24 Q. Have you inquired of Dr. Daniels
25 whether or not he has published anything on
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2 the subject of Lyme disease?
3 A. I specifically have not.
4 MR. MAURER: Let's mark a copy
5 of the Gannett newspaper article which is a
6 condensed version of what the doctor had
7 written, which was appearing on Monday
8 March 27, 1995 as Plaintiff's Exhibit
9 No. 7.
10 (Klein Deposition Exhibit 7 was
11 marked for identification. Exhibit
12 retained by counsel.)
13 Q. Is what we have had marked for
14 identification as Plaintiff's Exhibit No. 7
15 the condensed version of the article that
16 you have just identified, doctor?
17 A. That is correct.
18 MR. MAURER: I would request
19 that I be provided with a copy, complete
20 copy of the original version of the
21 newspaper article or what was used for the
22 newspaper article, since I believe it would
23 be appropriate in response to item No. 3 of
24 my supplemental notice for D and I.
25 MR. BILLIG: Agreed.
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2 ** INFORMATION REQUESTED TO BE SUPPLIED:
3 --------------------------------------
4 Q. Doctor, do you believe Lyme
5 disease was overdiagnosed and overtreated
6 in 1992?
7 A. Definitely.
8 Q. What is the basis for that
9 belief?
10 A. Many medical articles.
11 Q. Written by whom?
12 A. You have one in front of you
13 Durland, if I remember.
14 Q. Dr. Durland, if I remember?
15 A. Correct.
16 Q. Is he an MD?
17 A. I think he wrote it with
18 Dr. Daniels, who is an MD.
19 Q. Is Doctor Fish an MD?
20 A. I don't recall offhand. I think
21 that he is an entomologist.
22 Q. A bug expert?
23 A. I would not hold that against
24 him.
25 MR. BILLIG: Off the record
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2 (Witness and counsel confer.)
3 BY MR. MAURER:
4 Q. Besides what you have just
5 identified what other bases are there in
6 terms of articles that you are familiar
7 with that have been written which share
8 your view that Lyme disease was
9 overdiagnosed and overtreated in 1992?
10 A. I think you have a whole bunch of
11 articles in front of you. I don't remember
12 the specific author. The general -- the
13 gist from this will, some of them reflect
14 my feeling that many, many patients were
15 overdiagnosed with Lyme disease and many
16 patients were overtreated.
17 Q. What is the basis for that
18 feeling on your part?
19 A. I think the lack of appropriate
20 laboratory testing and the articles by
21 experts.
22 Q. Which experts?
23 A. Experts in Lyme disease and
24 infectious diseases.
25 Q. Name them, please.
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2 A. Here we go again. There was one
3 article there I think by Dr. Steere.
4 Q. You indicated one of the bases
5 for your conclusions a moment ago was that
6 there was a lack of appropriate testing for
7 Lyme disease by doctors, who were in your
8 opinion, over diagnosing and overtreating
9 Lyme disease in 1992?
10 A. I didn't say that.
11 MR. MAURER: Read back the
12 prior responses.
13 (The record was read.)
14 MR. BILLIG: Is that the
15 answer to the question?
16 A. The lack of accurate laboratory
17 testing is what I meant to say. Accurate
18 laboratory testing.
19 Q. What does knew mean?
20 A. The tests that were performed
21 during that period of time were either
22 inaccurate, patients were getting
23 false-positive or false-negative results or
24 a test could be false-negative when a
25 patient had the disease or false-positive
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2 when the patient did not have the disease.
3 Q. What patients are you referring
4 to?
5 A. Patients in general.
6 Q. What is the basis for your
7 statement of patients in general having
8 been overdiagnosed and overtreated with
9 Lyme disease in 1992 when you make
10 reference to patients in general?
11 A. There was a study in the state of
12 Georgia where a lot of patients were being
13 treated for positive blood tests for Lyme
14 disease when in actual fact, the tick and
15 the bacteria were not found in Georgia.
16 Q. What study is that?
17 A. I don't recall off the top of my
18 head.
19 Q. When was the study?
20 A. In 1992/93.
21 Q. When you say in fact the tick
22 carrying the bacteria was not present in
23 Georgia what is the basis for that
24 statement?
25 A. The article that I read.
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2 Q. So you are assuming the accuracy
3 of the information contained in the
4 article; is that correct?
5 MR. BILLIG: Yes or no.
6 A. Yes.
7 Q. That was the basis for your
8 statement based upon what you read? The
9 article?
10 A. I gave you one specific example.
11 Q. What I would like to do so that
12 you understand what I am trying to question
13 you about at this point in your deposition
14 is, I would like to have a clear
15 understanding of what the basis is for your
16 statement that Lyme disease was
17 overdiagnosed and overtreated in the
18 general public in 1992.
19 MR. BILLIG: I don't know if
20 he said in the general public.
21 MR. MAURER: He said
22 generally.
23 MR. BILLIG: That could mean a
24 lot of different things. If you wanted to
25 inquire about what he means generally.
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2 MR. MAURER: I want to know
3 everything supporting that statement what
4 he is relying on. That's what I want to
5 find out.
6 A. For one example there was a study
7 by the CDC which analyzed.
8 Various patients who were on
9 home infusion treatment for Lyme disease
10 and 40 to 60 percent of the patients who
11 were receiving home intravenous therapy
12 were inappropriately being treated for Lyme
13 disease which the CDC did not think that
14 they had.
15 Q. Is that study in the pile that
16 you have provided today?
17 A. I think so.
18 Q. Can you find it for me, please?
19 A. Number 359 is a summary of an
20 article that was in epidemiology and
21 control specifically 66 percent of cases
22 which met the CDC case definition will be
23 Lyme borreliosis only 66 percent met this
24 definition, and therefore, 34 percent were
25 mistreated.
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2 Q. I asked you to find the specific
3 CDC study that you were referring to.
4 A. I am sorry. This is one of the
5 articles that I was referring to.
6 MR. MAURER: Mark it as
7 exhibit 8-A, please.
8 (Klein Deposition Exhibit 8-A was
9 marked for identification. Exhibit
10 retained by counsel.)
11 MR. MAURER: For the record,
12 Exhibit 8-A is a two-page document and the
13 second page is actually what appears to be
14 a cover sheet for the fifth international
15 conference and Lyme Borreliosis conducted
16 in Arlington, Virginia on May 30th through
17 June 2nd, 1992 and has somebody's name
18 D E G U G L I E M O written to top of the
19 page -- the front page says epidemiology
20 and control Roman II (356-361.)
21 BY MR. MAURER:
22 Q. Doctor, based upon your knowledge
23 of the contents of the September 5, 1992
24 Northern Westchester Hospital Center
25 emergency room record, do you think that
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2 the medical staff who treated Mrs. Foley at
3 the emergency room on September 5, 1992
4 treated her appropriately?
5 MR. BILLIG: I will direct the
6 witness not to answer pursuant to Cavallo.
7 Don't answer that question.
8 Q. Doctor have you --
9 MR. BILLIG: He has given you
10 a lot of information concerning that visit
11 already.
12 Q. Do you think it was improper for
13 the emergency room staff at Northern
14 Westchester Hospital on September 5, 1992
15 not to perform a lumbar puncture on
16 Mrs. Foley when she was there?
17 MR. BILLIG: Same objection.
18 Don't answer that question and the same
19 objection will be made with respect to any
20 question asking for an expert opinion
21 relating to a co-defendant in this case.
22 Q. Doctor, you testified earlier
23 that had you seen Mrs. Foley in the
24 emergency room on September 5, 1992 that
25 you would have ordered an immediate lumbar
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1 RICHARD S. KLEIN
2 puncture and treated her with intravenous
3 antibiotics if the spinal fluid had an
4 abnormality; is that right?
5 MR. BILLIG: Asked and
6 answered.
7 MR. MAURER: It is just a
8 foundation for the next question.
9 MR. BILLIG: You know that he
10 testified to that. Your notes and the
11 record indicates that.
12 Q. Was your practice or procedure
13 that you would have followed on September
14 5, 1992 consistent with the practice of
15 infectious diseases physicians in the
16 community in which you practiced back in
17 September 1992?
18 MR. BILLIG: Again, asked and
19 answered.
20 MR. MAURER: I didn't ask that
21 question. I know what I asked.
22 MR. BILLIG: I understand
23 that.
24 MR. MAURER: I want an answer
25 to that question and then I will leave the
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1 RICHARD S. KLEIN
2 topic. Please let him answer.
3 MR. BILLIG: He has testified
4 with respect to that particular -- that
5 particular practice --
6 MR. MAURER: I didn't ask
7 about infectious diseases physicians. It
8 is the last question on this point.
9 MR. BILLIG: He testified to
10 many of your questions that the basis for
11 his answer was his experience in infectious
12 diseases. When you questioned him about
13 the lumbar puncture earlier in this
14 deposition that's the exact answer he gave
15 you.
16 MR. MAURER: I understand
17 that. I am asking a different question. I
18 am asking if based upon his knowledge of
19 the medical standards in the medical
20 community in which he practiced what he
21 says he would have done on September 5,
22 1992 was consistent with the practice of --
23 MR. BILLIG: You asked him
24 that exact question earlier. He was not
25 sure. I think his answer was that he was
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1 RICHARD S. KLEIN
2 not sure.
3 MR. MAURER: I don't think he
4 has said that at all. Let's have him
5 answer the question so that we don't waste
6 a the lot of time.
7 MR. BILLIG: Over my
8 objection.
9 A. I don't know the answer.
10 Q. What steps did you take prior to
11 September 5, 1992 to be familiar with the
12 medical standards of infectious diseases
13 physicians in the community in which you
14 practiced with regard to the diagnosis,
15 testing and treatment of Lyme disease?
16 MR. BILLIG: That was asked
17 and answered at the prior deposition, but
18 go ahead.
19 THE WITNESS: Repeat the
20 question.
21 (The pending question was read.)
22 THE WITNESS: I don't know how
23 to answer that question.
24 BY MR. MAURER:
25 Q. Did you do anything to keep
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1 RICHARD S. KLEIN
2 yourself familiar with the practices of
3 infectious diseases in the medical
4 community in which you were practicing
5 medicine prior to September 5, 1992
6 specifically with reference to what
7 standards were being followed for testing,
8 diagnosis and treatment of Lyme disease?
9 MR. BILLIG: Do you understand
10 what he is asking you?
11 THE WITNESS: Not really.
12 Q. What part of the question do you
13 not understand doctor and I will try to
14 clarify that part for you?
15 A. Okay.
16 MR. BILLIG: No. He is here
17 to answer questions. The question if it is
18 in improper form it is not his
19 responsibility to tell you how to frame the
20 question. You told me earlier that you
21 don't want me to give a vocal objection as
22 to what the question is. Overriding what
23 you told me before I don't think that he
24 knows what you are talking about. I think
25 that you know what you are talking about.
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2 You want to know what courses he took,
3 study groups or whatever. This was asked
4 on December 6th. He testified and he
5 indicated to you that he had articles. If
6 that is what you are looking for maybe you
7 better further clarify the question and
8 then he can answer.
9 Q. Doctor, was the information you
10 provided on December 6, 1995 about what you
11 did to educate yourself about testing,
12 diagnosing and treatment of Lyme disease
13 everything that you did in that regard as
14 far as you know so that you would keep
15 yourself abreast of the medical standards
16 for infectious disease physicians like
17 yourself?
18 MR. BILLIG: Off the record.
19 (Discussion off the record.)
20 MR. BILLIG: Do you understand
21 the question.
22 THE WITNESS: Now it is
23 different than -- I didn't understand the
24 way it was asked before.
25 Q. Do you understand it now?
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1 RICHARD S. KLEIN
2 A. Yes.
3 Q. Could you please answer the
4 question?
5 A. By reading literature, number
6 one, by speaking to other people, by
7 attending conferences and by reading
8 because the nature of Lyme disease, the
9 treatment and diagnosis have been
10 continually shifting; it kept on changing
11 from six months to six months over that
12 period of time. It was in its fluid state.
13 Q. How was it changing?
14 A. The type of tests that were
15 available was changing.
16 Q. What tests are you referring to?
17 A. Blood tests which were inaccurate
18 for Lyme disease were on the market.
19 Q. Such as what tests? Please be
20 specific.
21 A. We talked about it the last time,
22 the ELISA test. We talked about the
23 Western Blot Test and we talked about the
24 multitude of cottage industry laboratory
25 tests that were available in doctors
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2 offices which were not standardized.
3 Therefore, there was not then and
4 there is not now a single test that could
5 tell whether somebody has specific acute
6 Lyme disease and most of the time your
7 diagnosis had to depend on clinical
8 evaluation.
9 Q. Doctor, in August, September 1992
10 was it commonly accepted in the medical
11 community among infectious diseases
12 physicians treating, testing diagnosing
13 Lyme disease patients that if a blood test
14 came back such as the one run on Mrs. Foley
15 at Northern Westchester Hospital Center
16 during her July and August 1992 admission,
17 if such a test came back positive was it
18 standard practice to run a second test to
19 follow up because of the possibility that
20 the test was falsely positive?
21 A. I don't remember that being a
22 standard thing to do.
23 Q. Doctor, was that not something
24 that was indicated as a standard printed
25 statement by laboratories who did Lyme
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1 RICHARD S. KLEIN
2 disease testing in August, September 1992
3 that there should be a follow-up test for
4 the Lyme disease patient?
5 A. If you are referring to the piece
6 of paper that you showed me the last time
7 we sat down you are in error. That piece
8 of paper said that if a patient's blood
9 test was negative and if you suspect Lyme
10 disease that you should repeat the blood
11 test in three or 4 weeks.
12 Q. I just asked you a general
13 question, doctor.
14 A. I just answered it.
15 Q. I would ask you to answer my
16 general question and not making specific
17 reference to what you just did. I can have
18 the question read back.
19 A. I answered your question.
20 Q. By what, your last answer?
21 A. Correct. You only showed me one
22 piece of paper.
23 Q. I am not referring to any piece
24 of paper, doctor.
25 MR. BILLIG: Listen to the
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1 RICHARD S. KLEIN
2 question. Ask him the question again.
3 MR. MAURER: Can you read it
4 back again.
5 (The pending question was read.)
6 THE WITNESS: I don't have any
7 recollection of any other discussion other
8 than your showing me a piece of paper that
9 specifically asked about a second test.
10 BY MR. MAURER:
11 Q. I don't know what you are
12 referring to when you say a specific
13 discussion?
14 MR. BILLIG: That is with a
15 part of --
16 Q. What are you talking about when
17 you talk about a discussion? I am not
18 asking you about a specific document or any
19 discussion that we had up until this
20 point.
21 A. I am sorry.
22 MR. BILLIG: He was testifying
23 to the prior deposition, the question and
24 answer during the prior deposition.
25 MR. MAURER: I am not asking
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1 RICHARD S. KLEIN
2 about that. I would like to get an answer
3 to that specific question right now: Can
4 you please ask your client to answer this
5 specific question.
6 MR. BILLIG: The question is,
7 was there anything indicated in the test
8 package if there is a positive that you
9 should retest, generally?
10 MR. MAURER: Generally, would
11 a laboratory put that in print on Lyme
12 disease test reports, generally?
13 THE WITNESS: I don't know.
14 BY MR. MAURER:
15 Q. Doctor, you have previously
16 testified that you have treated over a
17 thousand Lyme disease patients; is it fair
18 to say that you have looked at thousands of
19 Lyme disease test reports pertaining to
20 those patients?
21 A. Yes.
22 Q. I have received a copy of your
23 entire chart pertaining to treatment
24 rendered by yourself and Dr. Daniels to
25 Mrs. Foley by cover letter dated January
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1 RICHARD S. KLEIN
2 10, 1996 from your attorney. Let me show
3 you what we are going to marked for
4 identification as Exhibit No. 9
5 collectively.
6 Could you tell me if this is a
7 complete set of the records that you and
8 your partner Dr. Daniels maintained with
9 respect to Mrs. Foley, which you provided
10 to Mr. Billig before he sent it to me.
11 A. It looks rather comprehensive.
12 MR. MAURER: Why don't we mark
13 the chart including the cover letter from
14 Mr. Billig collectively as Exhibit No. 9.
15 (Klein Deposition Exhibit 9 was
16 marked for identification. Exhibit
17 retained by counsel.)
18 BY MR. MAURER:
19 Q. Among the articles that you have
20 produced from your Lyme disease file the
21 home there are a number of articles in
22 which Durland Fish the entomologist listed
23 as being a contributor; is that correct?
24 A. Yes, I guess so.
25 MR. MAURER: Why don't we mark
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1 RICHARD S. KLEIN
2 the five articles I am referring to -- make
3 that 6 articles as exhibits 8-B C, D, E, F,
4 G.
5 (Klein Deposition Exhibits 8-B
6 through 8-G were marked for
7 identification. Exhibit retained by
8 counsel.)
9 BY MR. MAURER:
10 Q. In addition to the Durland Fish
11 articles that we have marked for
12 identification you have also produced an
13 article by Dr. Allen Steere, entitled Lyme
14 Disease a Growing Threat to Urban
15 Populations from March 1994. I will have
16 that marked for identification as Klein
17 Exhibit 8-H.
18 (Klein Deposition Exhibit 8-H was
19 marked for identification. Exhibit
20 retained by counsel.)
21 BY MR. MAURER:
22 Q. You have also produced another 2
23 page -- it is actually 4 sided 2 page
24 article entitled the Lyme Disease Invasion
25 by Thomas J. Daniels and Richard C. Falco,
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2 which I will have marked for identification
3 as 8-I.
4 (Klein Deposition Exhibit 8-I was
5 marked for identification. Exhibit
6 retained by counsel.)
7 BY MR. MAURER:
8 Q. You have also produced an article
9 entitled Problems In The Use of Serologic
10 Tests in the Diagnosis of Lyme Disease
11 printed in September 1991 journal entitled
12 Archives of Internal Medicine, volume 151.
13 We will mark that as 8-J.
14 (Klein Deposition Exhibit 8-J was
15 marked for identification. Exhibit
16 retained by counsel.)
17 MR. MAURER: The last article
18 is entitled Ecology and Environmental
19 Management of Lyme disease edited by Howard
20 S. Ginsberg. There is a 6 sided three page
21 copy which I will have marked for
22 identification as 8-K.
23 (Klein Deposition Exhibit 8-K was
24 marked for identification. Exhibit
25 retained by counsel.)
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2 BY MR. MAURER:
3 Q. Do you know who Eileen Hilton is?
4 A. Do not.
5 Q. Let me show you what we
6 previously marked for identification as
7 describing --
8 MR. MAURER: Can we mark as
9 Exhibit 8-L an article by Allen G. Barber
10 and Durland Fish entitled the Biologic and
11 Social Phenomenon of Lyme disease From
12 Science. Is that a journal, doctor?
13 (Klein Deposition Exhibit 8-L was
14 marked for identification. Exhibit
15 retained by counsel.)
16 THE WITNESS: Science is a
17 journal.
18 MR. MAURER: From June 11,
19 1993.
20 MR. MAURER: Let's mark for
21 identification as Klein Exhibit 8-M an
22 article by Drs. Fish, Piesman and Curran
23 entitled Reduction of Nymphal Ixodes
24 Dammini Cacari: Ixodidae) in a Residential
25 Suburban Landscape by Area Application of
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2 Insecticides.
3 (Klein Deposition Exhibit 8-M
4 was marked for identification. Exhibit
5 retained by counsel.)
6 BY MR. MAURER:
7 Q. Doctor, do you have any knowledge
8 as to how many patients in Westchester
9 County were receiving intravenous
10 antibiotics treatment for Lyme disease in
11 1991?
12 A. Not off the top of my head, no.
13 Q. Have you done any research into
14 that?
15 A. The only research I did had to do
16 with hospitalized patients or patients that
17 were treated in emergency rooms in
18 Westchester County, and that was during the
19 year 1994, I believe.
20 Q. You studied the patients in 1994?
21 A. I believe, 199 -- 1990 through
22 1994. I don't recall off the top of my
23 head.
24 Q. When did you make that study?
25 A. In 1994 -- the end of 1994,
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2 beginning '95.
3 Q. Would you look at the back of
4 what has been marked for identification as
5 Exhibit 8-A. Is that all in your
6 handwriting?
7 A. That is, sir.
8 Q. When did you make those
9 notations?
10 A. 1994/1995.
11 Q. What was the purpose of making
12 those notations when you made them?
13 A. Putting together a paper of
14 what is the economic impact of Lyme disease
15 on Westchester.
16 Q. Did you start that before or
17 after you were served with papers starting
18 this lawsuit?
19 A. I don't remember when I was
20 served with papers, and I have no idea.
21 Q. Can you please explain to me what
22 these notations say?
23 MR. BILLIG: Note my
24 objection.
25 MR. MAURER: It goes to his
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2 knowledge of the subject matter.
3 MR. BILLIG: In 1994. He said
4 these notes reference 1994. This case is
5 about 1992.
6 BY MR. MAURER:
7 Q. Doctor, did you have knowledge of
8 any of the information that is contained on
9 the back of Exhibit 8-A prior to October
10 1992?
11 MR. BILLIG: He testified that
12 he did research in 1994.
13 MR. MAURER: I understand
14 that. I am asking him if he knew any of
15 this prior to doing the research in 1994.
16 MR. BILLIG: How could he have
17 known it if he indicates that he made the
18 notes in 1994.
19 MR. MAURER: Another example
20 of a speaking objection. He may have known
21 some of this. Because he did research in
22 1994 does not mean that he knew nothing. I
23 would like to have an answer.
24 MR. BILLIG: I will partially
25 withdraw it because I see 1991 on here.
WESTCHESTER REPORTING SERVICE
0293
1 RICHARD S. KLEIN
2 MR. MAURER: That's what I
3 want to find out.
4 MR. BILLIG: Do you understand
5 the question?
6 THE WITNESS: Yes. I don't
7 remember this being in 1992.
8 Q. Is it fair to say that you did
9 not have knowledge of the information that
10 you wrote on the back of Exhibit 8-A in
11 1992?
12 A. That is correct.
13 Q. Did you actually write an article
14 or did it not get completed? You said you
15 were preparing some sort of an article I
16 thought, a report?
17 MR. BILLIG: I thought he was
18 referencing the newspaper article which you
19 marked for identification.
20 MR. MAURER: He did not say
21 that so I didn't want to assume that.
22 A. The article was written and a
23 portion of it was condensed in the
24 newspaper. I answered that before.
25 Q. What is written on the back of
WESTCHESTER REPORTING SERVICE
0294
1 RICHARD S. KLEIN
2 8-A had to do with the 8 page document
3 which was printed in condensed formed by
4 Gannett newspaper which was previously
5 identified here?
6 A. Yes, a small portion.
7 Q. Was part of your position that
8 Lyme disease is overdiagnosed and
9 overtreated based in part on information
10 that you have written on the back of 8-A
11 which says only 1400 confirmed cases using
12 CDC criteria out of 6,000 reported to the
13 Health Department?
14 MR. BILLIG: Knowledge in
15 1994? When? Knowledge when?
16 MR. MAURER: I am asking him
17 if that was part of the basis for his
18 opinion that Lyme disease was overdiagnosed
19 and overtreated as of the time he wrote the
20 article.
21 MR. BILLIG: Fine.
22 A. In part of that. Part of that
23 was, as I said, from articles. I didn't
24 come here prepared reading all of the
25 articles. I just pulled them out of my
WESTCHESTER REPORTING SERVICE
0295
1 RICHARD S. KLEIN
2 file. You have me at a disadvantage asking
3 me all of the questions without me sitting
4 down and reviewing all of them. However,
5 if there are --
6 MR. BILLIG: You don't have to
7 give a speech. Just answer the questions.
8 It was really a yes or no answer to the
9 question.
10 MR. MAURER: Do I have a yes
11 or no?
12 MR. BILLIG: He said in part
13 so I think he started with a yes. That's
14 how he started in part.
15 Q. Is the CDC criteria you referred
16 to in your handwritten note on the back of
17 8-A the criteria that I asked you about on
18 December 6, 1995?
19 A. Probably.
20 Q. And that's the criteria that you
21 could not specifically identify on
22 December 6, 1995; is that correct?
23 A. Correct.
24 Q. Are you able to identify the
25 criteria today?
WESTCHESTER REPORTING SERVICE
0296
1 RICHARD S. KLEIN
2 A. In part.
3 Q. Please do.
4 A. Finding of a rash, clinical --
5 the clinical diagnosis of Lyme disease and
6 a positive blood test.
7 Q. Doctor, was the CDC criteria that
8 we are talking about intended by the CDC,
9 if you know, to be used as a basis for
10 making or not making a diagnosis of Lyme
11 disease by a clinical physician?
12 MR. BILLIG: Note my objection
13 to form. You mean like a sole basis. You
14 say basis for making or not making. I
15 don't know what you mean by that.
16 MR. MAURER: That's right.
17 THE WITNESS: I don't know the
18 answer.
19 BY MR. MAURER:
20 Q. Was the opinion that you
21 expressed about Lyme disease being
22 overdiagnosed and overtreated based in part
23 on the presumption that the CDC criteria
24 was being used as a basis for reaching a
25 determination as to the Lyme disease in
WESTCHESTER REPORTING SERVICE
0297
1 RICHARD S. KLEIN
2 patients?
3 MR. BILLIG: Note my objection
4 to the form of the question.
5 A. No.
6 Q. Do you know who Dr, Alan Barber
7 is?
8 A. I remember the name.
9 Q. Do you know anything about him,
10 his background, credentials?
11 A. Off the top of my head, no.
12 Q. I asked you on December 6, 1995
13 if you could tell me who you considered to
14 be an expert in the field with respect to
15 diagnosis, testing and treatment of Lyme
16 disease. You mentioned a few people.
17 Based upon your looking through your files
18 at home or anything else that you have done
19 since December 6, 1995 are there any other
20 names that you wish to add to that list?
21 A. No.
22 Q. I notice that in the article by
23 Dr. Steere marked for identification as
24 Exhibit 8-H on page 2381 on the bottom of
25 the first column there are 4 lines that
WESTCHESTER REPORTING SERVICE
0298
1 RICHARD S. KLEIN
2 have been underlined in part. Did you
3 underline them?
4 A. Yes, that's my underlining, yes.
5 Q. Was that done before or after the
6 commencement of this lawsuit when you
7 received service of the summons and
8 complaint?
9 A. I don't know when that was.
10 Those were --
11 MR. BILLIG: The article is
12 dated March 1994.
13 THE WITNESS: They were
14 done --
15 MR. MAURER: That's totally
16 inappropriate.
17 MR. BILLIG: The question is
18 totally inappropriate. How could he have
19 underlined an article dated March 1994.
20 MR. MAURER: Your conduct is
21 outrageous. That's totally inappropriate.
22 MR. BILLIG: I don't know
23 about outrageous.
24 Q. Are you aware of any other
25 published articles which states that
WESTCHESTER REPORTING SERVICE
0299
1 RICHARD S. KLEIN
2 patients who "have had late manifestations
3 of Lyme disease usually remain seropositive
4 for years" other than the Steere article
5 marked for identification as 8-H?
6 A. Off the top of my head, no.
7 Q. Doctor, do you know if Dr. Allen
8 Steere recommended prior to July 1, 1992
9 that positive serologic tests for Lyme
10 disease be repeated for confirmation
11 purposes?
12 A. I don't know what he recommended.
13 MR. BILLIG: Note my objection
14 to the form of that question.
15 Q. Would I be correct, doctor, that
16 the articles by Dr. Fish and others for the
17 most part have to do with the ticks that
18 carry the Lyme disease bacteria and ways to
19 manage the tick population to reduce the
20 risk of people contracting Lyme disease?
21 A. They have to deal with how to
22 prevent the disease.
23 Q. Doctor, prior to July 1, 1992
24 based upon what you knew about Lyme disease
25 in terms of its testing, diagnosis and
WESTCHESTER REPORTING SERVICE
0300
1 RICHARD S. KLEIN
2 treatment, would you agree, would you have
3 agreed or disagreed with the following
4 statement, "In an area where there is a
5 high incidence of Lyme disease such as
6 Westchester County the presentation in July
7 of a patient with low grade fever, muscle
8 aches and erythema migrans poses few
9 diagnostic or therapeutic problems"?
10 MR. BILLIG: Are you referring
11 to -- you are reading from an article.
12 MR. MAURER: 8-C.
13 THE WITNESS: I would disagree
14 with that. I would not agree with it.
15 MR. BILLIG: What page are you
16 reading from?
17 MR. MAURER: It looks like
18 1612.
19 Q. The same question based upon what
20 you knew prior to July 1, 1992 about
21 diagnosis, testing and treatment of Lyme
22 disease would you have agreed with or
23 disagreed with the following statement
24 "On clinical and epidemilogic grounds this
25 condition, meaning Lyme disease would
WESTCHESTER REPORTING SERVICE
0301
1 RICHARD S. KLEIN
2 likely be early B. Brugdorferi infection"?
3 A. I have to have the beginning.
4 MR. MAURER: Would you please
5 show the doctor under dilemmas, diagnosis
6 and case management in the center column on
7 page 1612 of Exhibit 8-C where it begins
8 with "in an area where" if you can have the
9 doctor read that paragraph down through
10 about the middle of the paragraph where the
11 sentence starts with" however."
12 Q. Have you read it, doctor?
13 A. Yes.
14 Q. I am just limiting my question to
15 what is stated through the words B.
16 Burgdorferi infection. I am not continuing
17 with what is stated about prompt
18 treatment.
19 Would you agree or disagree with
20 what you just read in that paragraph up
21 until the point I indicated based upon what
22 you knew prior to July 1, 1992 about
23 diagnosis, testing and treatment of Lyme
24 disease?
25 MR. BILLIG: Note my objection
WESTCHESTER REPORTING SERVICE
0302
1 RICHARD S. KLEIN
2 to the form of the question.
3 A. Okay.
4 MR. BILLIG: Yes or no, if you
5 can answer it that way.
6 A. I would answer, yes.
7 Q. You would agree?
8 A. Yes.
9 Q. Okay, doctor. You indicated
10 today that back in 1992 the situation with
11 regard to the knowledge of Lyme disease and
12 the kinds of tests that were available for
13 diagnosing Lyme disease in 1992 was
14 changing every six months; is that correct?
15 A. Correct.
16 Q. Would you agree that whole area
17 with regard to the testing and diagnosis of
18 Lyme disease was in a state of flux back in
19 the middle of 1992?
20 A. Yes.
21 Q. Would you also agree that because
22 of the existence of that state of flux that
23 physicians who saw patients on a regular
24 basis for possible Lyme disease in the
25 Westchester County area were likely to have
WESTCHESTER REPORTING SERVICE
0303
1 RICHARD S. KLEIN
2 different opinions with regard to when and
3 if it would be appropriate to make a
4 diagnosis of Lyme disease in their patients
5 back around July 1, 1992?
6 A. That's hard to say.
7 Q. Why is it hard to say?
8 A. If you are talking about a very
9 educated -- that is, if you are talking
10 about infectious diseases experts I would
11 say that there was more or less general
12 agreement.
13 Q. Did that general agreement that
14 you have just referred to or indicated
15 include a general agreement with regard to
16 retesting patients who were thought to have
17 false-positive Lyme serologies reported to
18 the doctors?
19 A. I can't answer that.
20 Q. Why?
21 A. I don't believe the answer.
22 Q. You don't know the answer because
23 of what?
24 A. I don't know the answer what
25 other doctors were thinking about testing
WESTCHESTER REPORTING SERVICE
0304
1 RICHARD S. KLEIN
2 or not retesting.
3 Q. Was it not unusual back in the
4 summer of 1992 for infectious diseases
5 physicians in Westchester where you
6 practice medicine to talk to each other
7 about their patients and exchange ideas
8 about their patients conditions and how to
9 treat them?
10 A. Not unusual.
11 Q. Fairly common?
12 A. Common.
13 Q. Did you know with 100 percent
14 medical certainty that Mrs. Foley's Lyme
15 disease tests which came back positive back
16 in August of 1992 was falsely positive when
17 you learned of the result?
18 A. I felt confident that it was
19 falsely elevated. No, I didn't say it was
20 falsely elevated. I thought it was a test
21 that was positive from a prior infection.
22 That's not falsely elevated.
23 Q. Did you believe that you were
24 able to state with a reasonable degree of
25 medical certainty that was a positive test
WESTCHESTER REPORTING SERVICE
0305
1 RICHARD S. KLEIN
2 based upon the condition previously tested
3 prior to 1992?
4 A. Yes.
5 Q. Doctor, let me show you a page
6 from your chart which indicates at the top
7 8/31/92 and at the bottom it goes through
8 9/8/92, which I will have marked for
9 identification as exhibit 9-A.
10 (Klein Deposition Exhibit 9-A was
11 marked for identification. Exhibit
12 retained by counsel.)
13 Q. I am going to circle something
14 with a red marker so that we will know
15 exactly what I am referring to. Would you
16 look at what has been marked for
17 identification as exhibit 9-A. Doctor,
18 look at the entire page out of fairness and
19 familiarize with what was going on in the
20 time period and not just what I circled in
21 red.
22 MR. BILLIG: Read the whole
23 thing to yourself.
24 A. Okay.
25 Q. When did you make the notation in
WESTCHESTER REPORTING SERVICE
0306
1 RICHARD S. KLEIN
2 your chart that is circled in red?
3 A. I think after the patient left
4 the -- I am pretty certain I wrote that
5 after the patient left the room I sat down
6 and kind of scribbled what came into my
7 mind.
8 Q. Is it fair to say that as of
9 9/8/92 you were uncertain that the positive
10 titre that came back from the test done in
11 August of 1992 at the hospital represented
12 an old Lyme or an old titre?
13 MR. BILLIG: Objection to
14 form. He testified that when he first
15 received the test he has stated to what his
16 state of knowledge was when he first
17 received the test. That's the problem that
18 I have with your question.
19 MR. MAURER: I don't know what
20 that has to do with anything. The question
21 was very specific that when he wrote this
22 particular notation is it not true that he
23 was not certain that the positive Lyme test
24 represented an old titre?
25 A. Quite the contrary. I just wrote
WESTCHESTER REPORTING SERVICE
0307
1 RICHARD S. KLEIN
2 it out what I was coming out of my head.
3 Q. Would you please, read word for
4 word the notation that I have circled in
5 red beginning with "as she had."
6 A. Would that be unfair or --
7 MR. BILLIG: Just read what he
8 asked you.
9 A. "As she had been treated in 1988
10 and 1990 --
11 Q. Doctor, please read it verbatim?
12 MR. BILLIG: He is.
13 MR. MAURER: I don't want him
14 to interpret the note.
15 MR. BILLIG: It is as she had
16 been treated Rx.
17 MR. MAURER: I understand. I
18 wanted the Rx.
19 MR. BILLIG: He did not add to
20 the record?
21 A. As she had been Rx 1986 and 1990
22 for positive sign Lyme and this Prob
23 represents old titre."
24 Q. And Prob means probably?
25 A. Correct.
WESTCHESTER REPORTING SERVICE
0308
1 RICHARD S. KLEIN
2 Q. Doctor, you said represent should
3 it not be represented?
4 A. It sure does.
5 Q. Doctor, based upon your knowledge
6 of Mrs. Foley's course of her condition and
7 treatment starting 9/5/92 going forward in
8 time into October, can you tell me when her
9 Bell's Palsy condition started to improve?
10 Please feel free to look at any records
11 that you have available from counsel.
12 A. The question is when her Bell's
13 Palsy started to improve while she was in
14 the hospital?
15 Q. No. I said, from 9/5/92 going up
16 to the time you stopped treating her can
17 you tell me what you know, and you can look
18 at whatever medical records you want to
19 look at, when Mrs. Foley's Bell's palsy
20 condition started to improve?
21 A. It would be in the hospital
22 record. There is a notation of mine. This
23 is going to be the last question because I
24 have to leave after this.
25 MR. BILLIG: Are you almost
WESTCHESTER REPORTING SERVICE
0309
1 RICHARD S. KLEIN
2 done?
3 MR. MAURER: No.
4 THE WITNESS: There is no
5 way. I can't stay.
6 MR. BILLIG: How much more do
7 you have?
8 THE WITNESS: I am not
9 staying.
10 MR. BILLIG: I understand
11 that. How much more do you have?
12 MR. MAURER: I have to go
13 through the balance of his notations. I
14 need to ask some questions about the
15 hospital record.
16 MR. BILLIG: We will
17 reschedule.
18 A. Could we leave that question
19 open. It will take five minutes or so to
20 look through the record and --
21 Q. If you would like to have the
22 time to do that and have the answer for us
23 when we return, great.
24 THE WITNESS: Okay.
25 MR. MAURER: At the doctors
WESTCHESTER REPORTING SERVICE
0310
1 RICHARD S. KLEIN
2 request we will adjourn his deposition to
3 be resumed at a mutually convenient time.
4 In the interim I would ask that the doctor
5 look through his files at home and make
6 sure that there are no other Lyme disease
7 articles, publications that he crossfiled.
8 I want to know everything that you have
9 doctor, okay?
10 A. My pleasure, doctor.
11 MR. BILLIG: Plaintiff,
12 Mr. Foley who has been in attendance at
13 most of the deposition has been making
14 notes. I don't know if the notes are
15 something that is confidential
16 communication with his attorney or
17 statements made by a party in this case. I
18 would ask that all notes made at the
19 depositions be maintained by Mr. Foley if
20 they become subject of some future motion
21 practice.
22 MR. MAURER: Exhibit 8-B is
23 entitled Population Ecology of Ixodes
24 dammini by Durland Fish; 8-C is entitled
25 The Biological and Social Phenomenon of
WESTCHESTER REPORTING SERVICE
0311
1 RICHARD S. KLEIN
2 Lyme Disease by Allen Barber and Fish.
3 8-D is Canine Exposure to
4 Borrelia Burgdorferi. That was from the
5 1993 January Journal of Medical
6 Entomology.
7 8-E is the Evaluation of
8 Host-Targeted Acaricide for Reducing Risk
9 of Lyme Disease in Southern New York
10 State. That was from the July 1991 Journal
11 of Medical Entomology.
12 8-F is entitled The Distribution
13 of Canine Exposure to Borrelia Burgdorferi
14 in a Lyme disease Endemic Area; this was
15 printed in the September 1993, American
16 Journal of Public Health.
17 8-G is entitled the Reduced
18 Abundance of Ixodes Scapularis Cacari:
19 Ixodidae and Lyme Disease Risk by Deer
20 Exclusion from the November 1993 Journal of
21 Medical Entomology.
22 (TIME NOTED: 1:00 P.M.)
23 oOo
24
25
WESTCHESTER REPORTING SERVICE
0312
1 RICHARD S. KLEIN
2 STATE OF NEW YORK )
3 ss:
4 COUNTY OF NEW YORK )
5
6 I, RICHARD S. KLEIN, the witness
7 herein, having read the foregoing testimony
8 of the pages of this deposition, do hereby
9 certify it to be a true and correct
10 transcript, subject to the corrections, if
11 any, shown on the attached page.
12 oOo
13
14
15 ______________________
16 RICHARD S. KLEIN
17
18
19
20 Subscribed and sworn to before me
21 this______day of___________, 19__
22 ________________________________.
23
24
25
WESTCHESTER REPORTING SERVICE
0313
1 RICHARD S. KLEIN
2 STATE OF NEW YORK ) Pg__of__Pgs
3 ss:
4 COUNTY OF NEW YORK )
5 I wish to make the following changes,
6 for the following reasons:
7 PAGE LINE
8 ____ ____ CHANGE: _______________________
9 REASON: _______________________
10 ____ ____ CHANGE: _______________________
11 REASON: _______________________
12 ____ ____ CHANGE: _______________________
13 REASON: _______________________
14 ____ ____ CHANGE: _______________________
15 REASON: _______________________
16 ____ ____ CHANGE: _______________________
17 REASON: _______________________
18 ____ ____ CHANGE: _______________________
19 REASON: _______________________
20 ____ ____ CHANGE: _______________________
21 REASON: _______________________
22 ____ ____ CHANGE: _______________________
23 REASON: _______________________
24 ____ ____ CHANGE: _______________________
25 REASON: _______________________
WESTCHESTER REPORTING SERVICE
0314
1
2 INDEX
3 RICHARD S. KLEIN
4
5 PAGE: LINE:
6 EXAMINATIONS CONDUCTED:
7 By Mr. Maurer 218 11
8
9
10 Information Requested 265 13
11 Information Requested 268 2
12
13
14
15
16
17
18
19
20
21
22
23
24
25
WESTCHESTER REPORTING SERVICE
0315
1
2 EXHIBIT INDEX
3 RICHARD S. KLEIN
4
5 NO: DESCRIPTION: PAGE:
6 5 Condensed transcript dated 229
7 12/6/95
8
9 6 Supplemental notice for D&I 262
10 dated 1/22/96
11
12 7 Gannett newspaper article 267
13 dated 3/27/95
14
15 8-A Fifth International 274
16 Conference on Lyme Boreliosis
17 May 30 - June 2, 1992
18
19 9 Chart and cover letter 286
20
21 8-B Population Ecology of Ixodes 287
22 dammini by Durland Fish
23
24 8-C The Biological and Social 287
25 Phenomenon of Lyme Disease
WESTCHESTER REPORTING SERVICE
0316
1
2 EXHIBIT INDEX
3 RICHARD S. KLEIN
4
5 NO: DESCRIPTION: PAGE:
6 8-D Canine Exposure to Borrelia 287
7 Burgdorferi and Prevalence
8 of Ixodes cammini (Acari:
9 Ixodidae) on Deer as a measure
10 of Lyme Disease Risk in
11 the Northeastern United States
12
13 8-E Evaluation of Host-Targeted 287
14 Acaricide for Reducing Risk
15 of Lyme Disease in Southern
16 New York State
17
18 8-F The Distribution of Canine 287
19 Exposure to Borrelia Burgdorferi
20 in a Lyme Disease Endemic Area
21
22 8-G Reduced Abundance of Ixodes 287
23 Scapularis (Acari: Ixodidae)
24 and Lyme Disease Risk by Deer
25 Exclusion
WESTCHESTER REPORTING SERVICE
0317
1
2 EXHIBIT INDEX
3 RICHARD S. KLEIN
4
5 NO: DESCRIPTION: PAGE:
6 8-H Lyme Disease: A Growing 287
7 Threat to Urban Populations
8
9 8-I The Lyme Disease Invasion 288
10
11 8-J Problems in the use of 288
12 Serologic Tests for the
13 Diagnosis of Lyme Disease
14
15 8-K Ecology and Environmental 288
16 Management of Lyme Disease
17
18 8-L The Biological and Social 289
19 Phenomenon of Lyme Disease
20
21 8-M Reduction of Nymphal Ixodes 290
22 dammini (Acari: Ixodidae)
23 in a Residential Suburban
24 Landscape by Area Application
25 of Insecticides
WESTCHESTER REPORTING SERVICE
0318
1
2 EXHIBIT INDEX
3 RICHARD S. KLEIN
4
5 NO: DESCRIPTION: PAGE:
6 9-A Chart page dated 8/31/92 305
7 to 9/8/92
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 WESTCHESTER REPORTING SERVICE
1
2 SUPREME COURT OF THE STATE OF NEW YORK
3 COUNTY OF WESTCHESTER
4 -----------------------------------------------
5 ELIZABETH B. FOLEY and ROBERT J. FOLEY,
6 Plaintiffs,
7 -against-
8 DR. RICHARD S. KLEIN, et al.,
9 Defendants.
10 -----------------------------------------------
11
202 Mamaroneck Avenue
12 White Plains, New York 10601
February 28, 1996
13 1:45 P.M.
14
15
16
17 CONTINUED EXAMINATION BEFORE TRIAL
18 of
19 RICHARD S. KLEIN
held at the above place and time,
20 before a Notary Public within and
for the State of New York.
21
22
23
24 KARYN CHIUSANO,
Reporter
25
INTERIM COURT REPORTING
White Plains, New York
(914) 761-6600
0321
1
2 APPEARANCES OF COUNSEL:
3
4 ELKIND, FLYNN & MAURER, P.C.
Attorneys for Plaintiffs
5 ELIZABETH B. FOLEY and ROBERT J. FOLEY
11 Martine Avenue
6 White Plains, New York 10606
7 BY: IRA M. MAURER, ESQ.
8
9 DuBOIS, BILLIG, LOUGHLIN, CONATY &
WEISMAN, ESQS.
10 Attorneys for Defendants KLEIN and DANIELS
195 Lake Louise Marie Road
11 Rock Hill, New York 12775
12 BY: JACOB BILLIG, ESQ.
13
14 WILSON, BAVE, CONBOY, COZZA & COUZENS,
ESQS.
15 Attorneys for Defendant BRENNER
2 William Street
16 White Plains, New York 10601
17 BY: MICHELE FOURNIER, ESQ.
18
19 RENDE, RYAN & DOWNES, L.L.P.
Attorneys for Defendant
20 NORTHERN WESTCHESTER HOSPITAL
202 Mamaroneck Avenue
21 White Plains, New York 10601
22 BY: PATRICIA RYAN, ESQ.
23
24
25 ALSO PRESENT:
INTERIM COURT REPORTING
White Plains, New York
(914) 761-6600
0322
1
2 ROBERT J. FOLEY
3
IT IS HEREBY STIPULATED AND AGREED,
4 by and between the attorneys for the
respective parties hereto, that all rights
5 provided by the Civil Practice Law and
Rules, including the right to object to
6 any question, except as to form, or to
move to strike any testimony of this
7 examination are reserved, and, in
addition, the failure to object to any
8 question shall not be a bar or waiver to
make such motion at, and is reserved for
9 the trial of this action.
10
11 IT IS FURTHER STIPULATED AND AGREED,
that this examination may be signed and
12 sworn to by the witness being examined
before a Notary Public other than the
13 Notary Public before whom this examination
was begun, but the failure to do so, or to
14 return the original of this examination to
counsel, shall not be deemed waiver of any
15 rights.
16
17 IT IS FURTHER STIPULATED AND AGREED,
that the filing of the original of this
18 examination is waived.
19
20
21
22
23
24
25
INTERIM COURT REPORTING
White Plains, New York
(914) 761-6600
0323
1
2 R I C H A R D S. K L E I N,
3 having been previously duly sworn by
4 Michael Catania, a Notary Public
5 within and for the State of New York,
6 was examined and testified as follows:
7
8 oOo
9
10 CONTINUED EXAMINATION CONDUCTED
11 BY MR. MAURER:
12 Q. Are you and Dr. Daniels still in
13 practice today as partners?
14 A. No.
15 Q. When did you stop being
16 partners?
17 MR. BILLIG: Note my objection to
18 the form of the question. You can answer.
19 Q. When did your partnership come
20 to an end?
21 MR. BILLIG: Note my objection.
22 When did they stop practicing
23 medicine together? It has a certain legal
24 implication as opposed to medical.
25 Q. When did you stop practicing
INTERIM COURT REPORTING
White Plains, New York
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2 medicine with Dr. Daniels?
3 A. Sometime in August of 1995.
4 Q. Are you still practicing
5 medicine at the same office address?
6 A. That is correct.
7 Q. Have you reviewed any materials
8 since the last deposition last week with
9 reference to this case?
10 A. No, I did not.
11 Q. At the conclusion of your last
12 deposition, I asked you a question which
13 called for you to look through your file
14 in order to answer it and at that point,
15 the decision was made to break; do you
16 recall the question?
17 A. Not at all.
18 Q. Unfortunately, neither do I and
19 unfortunately Mr. Catania isn't here.
20 MR. BILLIG: Off the record.
21 (Discussion held off the record.)
22 Q. Doctor, would you agree with me
23 that there are many different illnesses
24 that cover the symptoms of the illness
25 masked by treatment with medication
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2 without necessarily curing the underlying
3 condition?
4 A. Yes.
5 Q. Are there certain Lyme disease
6 patients who are more likely than others
7 to have antibodies to the Lyme disease
8 bacteria present in sufficient numbers
9 over the course of time so as to cause
10 repeat serology to Lyme to be positive?
11 A. Repeat the question. Could you
12 rephrase the question?
13 MR. MAURER: Read that back.
14 (The pending question was read
15 as requested.)
16 Q. Is there some part of it that is
17 giving you some trouble so I know what to
18 focus on?
19 A. I think the run-on.
20 Q. Under what circumstances would
21 you expect a Lyme disease patient to have
22 a repeat Lyme test that is positive where
23 there is no active infection?
24 A. It can be a normal occurrence.
25 Q. When you say "it can be a normal
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2 occurrence," what do you mean?
3 A. Somebody can have-- we discussed
4 this already. I answered this question in
5 December.
6 Q. I don't recall your answering
7 this particular question.
8 A. You had a line of questioning
9 about what percentage of people have
10 positive blood tests after Lyme disease
11 and I answered that question.
12 Q. Well, what I am trying to find
13 out is are there certain types of Lyme
14 patients who are more likely to have a
15 positive test on repeat testing?
16 A. I don't know the answer to that.
17 Q. Is there any correlation that
18 you're aware of between how long a Lyme
19 disease patient has untreated Lyme disease
20 and how far they progress with the disease
21 and the likelihood that someone will have
22 a positive repeat Lyme test down the road?
23 A. I don't know.
24 Q. Would you agree with the
25 statement that patients who have had late
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2 manifestations of Lyme disease usually
3 remain zero positive for years after
4 treatment?
5 A. I don't know the answer to that.
6 Q. Let me show you a copy of--
7 actually it's the original exhibit,
8 Exhibit 8-H from 2/21/96, last week, which
9 is the article by Dr. Steer entitled "Lyme
10 disease, a growing threat to urban
11 populations" and specifically refer you
12 to--
13 A. Are we talking about 1993 or '92
14 when the patient was ill? I'm sorry.
15 Q. Doctor, I am asking you a
16 question and I am not specifically
17 referring to 1992 or 1993; okay?
18 A. Okay.
19 Q. Among the papers that were
20 published that you produced from your
21 files at the last deposition date was this
22 article by Dr. Steer which we marked as
23 Exhibit 8-H and what I would like to do is
24 refer you to Page 2381, the bottom of the
25 left side column, last paragraph and ask
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2 you to take a look at that paragraph and
3 read it to yourself.
4 MR. BILLIG: Which part are you
5 talking about?
6 MR. MAURER: Here (indicating).
7 MR. BILLIG: Okay, what is
8 underlined.
9 A. In an article dated 1994, there
10 is a statement--
11 MR. BILLIG: He didn't ask you a
12 question. He just asked to you read that.
13 THE WITNESS: Okay.
14 Q. Did you underline that section
15 of the article that I have just asked to
16 you read?
17 A. Yes.
18 Q. Did you place this article in
19 your file to use in the defense of this
20 lawsuit?
21 A. Not at all.
22 MR. BILLIG: Objection to the
23 form of the question.
24 Q. Doctor, since the date of your
25 last deposition, have you become aware of
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2 any testimony that you gave on the date of
3 your last deposition which you believe
4 needs to be corrected?
5 MR. BILLIG: Objection to the
6 form of the question. What do you mean,
7 has he become aware?
8 MR. MAURER: Is he aware of any
9 testimony that he has given which he
10 believes needs to be corrected on further
11 thought or whatever.
12 MR. BILLIG: Thinking about what
13 he testified to last time?
14 A. Adding something to an answer?
15 Q. Is there anything you wish to
16 change or modify?
17 A. I would like to object to some
18 characterization, in the way you refer to
19 some doctors as bug people, I thought that
20 was a little disrespectful.
21 Q. Anything else?
22 A. No.
23 Q. Do you have a standard practice
24 with regard to when you dictate a hospital
25 discharge summary with regard to patients
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2 who are discharged from Northern
3 Westchester Hospital Center which you
4 would follow back in 1992?
5 A. I don't know what you mean by
6 "standard."
7 Q. What I would like to know is,
8 generally, what was your practice with
9 regard to when you would dictate the
10 summary back in 1992?
11 A. Whenever I had a chance to sit
12 down in the record room and review the
13 chart.
14 Q. Was there a range of time within
15 which you would normally do that, whether
16 it be days to weeks after discharge or
17 whatever else?
18 A. Usually between a week and two
19 months.
20 Q. Were most of the discharge
21 summaries dictated within a few weeks
22 after discharge?
23 A. Approximately a month.
24 Q. Doctor, could you locate your
25 copy of your discharge summary for the
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2 Northern Westchester Hospital Center that
3 you dictated on October 9, 1992, it's a
4 three-page summary.
5 MR. BILLIG: This is the
6 discharge summary for October 9th?
7 MR. MAURER: It says "summary"
8 actually. It doesn't say "discharge
9 summary," it just says "summary," with a
10 final diagnosis listing the different
11 things.
12 Q. Do you have it?
13 A. Yes (indicating).
14 Q. At your last deposition, do you
15 recall telling me that you were certain
16 that Mrs. Foley did not have Lyme disease
17 during her first hospitalization in July
18 and August of 1992 and that the Lyme
19 disease that was treated in September of
20 1992 was a new condition that she
21 contracted or developed either at the tail
22 end of August, '92 or the first week of
23 September, '92?
24 A. That was my feeling, yes.
25 Q. Is it still your feeling?
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2 A. Yes.
3 Q. On Page 2 of the summary, I
4 asked you to pull out on the third
5 paragraph beginning with "approximately
6 four to five days," do you see it?
7 A. Yes.
8 Q. Could you read that word for
9 word out loud for the record, please?
10 MR. BILLIG: Well, the document
11 is a typed document, it speaks for itself.
12 Why don't you just, you know, ask him
13 questions on it.
14 Q. The last--
15 MR. BILLIG: We don't have any
16 trouble reading it, it's a typed document.
17 MR. MAURER: I am looking at a
18 poor copy (indicating).
19 MR. BILLIG: That is true, Ira,
20 your copy is poor.
21 MR. MAURER: I was asking him to
22 do that for a reason.
23 MR. BILLIG: Do you want to read
24 his?
25 Q. Doctor, the paragraph I just
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2 referred to states "approximately
3 four-five days subsequently to this onset
4 of pain, she developed a rash over her
5 left eye and signs and symptoms of Bell's
6 palsy on the left and in retrospect, the
7 positive Lyme test which was reported just
8 four or five days prior to this was real
9 rather than a false positive," could you
10 please explain to me what you meant by the
11 positive test which was reported just four
12 or five days prior to this was real rather
13 than a false positive?
14 A. I think I was trying to say that
15 the test was a positive test from her
16 prior disease of a year and a half ago.
17 Q. And you weren't trying to say in
18 any way there, in retrospect, the test
19 that Dr. Brenner ordered which was
20 reported as positive was real in the sense
21 of it evidencing a current Lyme infection?
22 A. Not at all.
23 Q. What is a neuritis multiflex
24 second to Lyme disease?
25 A. Inflammation of a nerve in more
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2 than one location.
3 Q. Is that a condition that is
4 typically consistent with what you would
5 find in disseminated Lyme disease?
6 A. No.
7 Q. Is it your claim that a neuritis
8 multiflex second to Lyme disease is
9 something that you would find in an acute
10 phase of Lyme disease?
11 MR. BILLIG: Note my objection to
12 the form of the question.
13 A. I didn't claim anything. You
14 asked me a different question.
15 Q. Okay.
16 Is a neuritis multiflex second
17 to Lyme disease a condition that you might
18 see in disseminated Lyme disease patients?
19 A. Yes.
20 Q. Is it something that you would
21 see in a Lyme disease patient who was in
22 the acute phase of Lyme disease?
23 A. Possibly, yes.
24 Q. In 1989 and 1990, was it common
25 practice for physicians in the area where
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2 you practice to perform in-house Lyme
3 disease tests in their offices as opposed
4 to sending it out to an outside
5 laboratory?
6 A. That is correct.
7 Q. Do you still do in-house Lyme
8 disease testing?
9 A. No.
10 Q. What action or steps did you
11 take, if any, to limit the possibilities
12 of inaccurate test results with regard to
13 the in-house testing you did in 1989 and
14 1990?
15 A. In 19--
16 MR. BILLIG: Note my objection to
17 the question. I mean this is well outside
18 the scope of what is involved in the
19 lawsuit.
20 MR. MAURER: Not at all.
21 MR. BILLIG: How is it not?
22 MR. MAURER: It's very much
23 relevant to the issues of diagnostic tests
24 and tests that you can rely on and not
25 rely on and so forth. It's very relevant.
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2 MR. BILLIG: This case is
3 involving treatment that occurred in 1992.
4 MR. MAURER: That is right and in
5 part, his decisions were based on
6 information stemming from in-house testing
7 he did in his office in '90. It's
8 relevant. I don't think I have to say more
9 than that.
10 MR. BILLIG: Okay. Over my
11 objection.
12 A. In 1989 and 1990, we were not
13 fully cognizant of the inaccuracies of
14 those tests.
15 Q. You weren't fully cognizant?
16 Were you aware of the fact that there were
17 problems with Lyme disease testing in '89
18 and '90?
19 MR. BILLIG: Objection to the
20 form of the question. It's argumentative.
21 MR. MAURER: No, it's not. He
22 said he wasn't fully cognizant of it, I
23 want to know how much he was aware of
24 since he said "fully."
25 A. I don't remember in '89 and 1990
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2 what degree of inaccuracy there was.
3 Q. Did you do any research before
4 doing testing in '89 and '90 for Lyme
5 disease in-house with regard to the
6 accuracy of the test that you were
7 administering?
8 A. I did.
9 Q. What kind of research did you
10 do?
11 A. I read the literature.
12 Q. What literature?
13 A. Whatever was supplied with the
14 FDA insert, whatever insert that comes
15 with the test.
16 Q. Beyond that, did you do any
17 research?
18 A. Possibly reading some magazine
19 article about it.
20 Q. When did you stop doing in-house
21 Lyme disease testing?
22 A. I don't remember.
23 Q. Can you give me an
24 approximation?
25 A. No.
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2 Q. Was it some time after October
3 of 1992?
4 A. I know I haven't done them in
5 the past two years.
6 Q. Okay.
7 That would be '94 and '95, so
8 you think some time possibly in--
9 A. I can't think. I don't know.
10 Q. With what degree of frequency
11 were you performing in-house Lyme disease
12 testing before you stopped doing so?
13 A. Whenever I deemed it
14 appropriate.
15 Q. Approximately what percentage of
16 your Lyme disease patients did you perform
17 in-house Lyme disease testing on prior to
18 October of 1992?
19 MR. BILLIG: Again, note my
20 objection. I realize we saved relevancy
21 until later on in the proceedings but I
22 don't know where you are going with this.
23 You inquired as to the other issues I
24 objected over and I don't even see the
25 possible relevancy that that has.
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2 MR. MAURER: You might not but I
3 do. It's in good faith and I would rather
4 not turn my cards over now.
5 MR. BILLIG: Over my objection.
6 If you can answer it.
7 A. I don't know the answer.
8 Q. Did you keep any sort of records
9 of how often you were doing these tests,
10 lab records that showed the tests that
11 were done?
12 MR. BILLIG: Objection to the
13 form of the question.
14 A. An obvious record would be kept
15 in the patient's chart.
16 Q. Beyond that, in order to do the
17 test, for example, you said that you would
18 have read the FDA material that came as an
19 insert; is that right?
20 A. I said that.
21 Q. Was the test administered using
22 some sort of a test kit that you would
23 purchase from a lab?
24 A. That is correct.
25 Q. Would you have any sort of
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2 records as to how many Lyme disease test
3 kits you purchased prior to October of
4 1992?
5 A. I would--
6 MR. BILLIG: Again, just note my
7 objection to the question.
8 A. I have no records.
9 Q. Would I be correct in assuming
10 that the cost of the lab kits that were
11 purchased by you to perform these Lyme
12 disease tests in the past were written off
13 as business expenses?
14 A. Correct.
15 Q. And would you submit the
16 paperwork to your accountant who would
17 take care of accounting functions for your
18 medical practice?
19 A. That would be probably, yes. Of
20 course.
21 Q. Who is the accountant that you
22 used in and before 1992 for a period of
23 five years?
24 MR. BILLIG: Again, note my
25 objection to the question.
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2 MR. MAURER: I hear you.
3 A. I believe Gerald Seligson.
4 Q. Gerald with a "G"?
5 A. Yes.
6 Q. Where is his office located?
7 A. I believe 202 Mamaroneck Avenue
8 or 200.
9 Q. Downstairs in the building next
10 door here?
11 A. I have never been to his office.
12 Q. So, that is White Plains?
13 A. Yes.
14 Q. How long has he been your
15 accountant?
16 A. He is not my accountant.
17 Q. Has he been the medical
18 practice's accountant for a period of
19 time?
20 A. Your question was how long has
21 he been my accountant.
22 Q. Okay.
23 How long did he perform
24 accounting functions for your medical
25 practice?
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2 A. Approximately ten years.
3 Q. From when to when,
4 approximately?
5 A. From up until 1993 or '94.
6 Q. When did you become aware that
7 there was any sort of issue or concern
8 about the accuracy of Lyme disease
9 testing?
10 A. You asked me that. I don't know.
11 Q. You don't know if it was before
12 or after 1992?
13 A. No, I do not.
14 Q. In August of '92, you went away
15 on vacation, did you speak to Dr. Brenner
16 at all during your vacation about Mrs.
17 Foley's condition?
18 A. No, I did not.
19 Q. When you returned from your
20 vacation, did you speak to Dr. Brenner at
21 all about Mrs. Foley's condition?
22 A. Immediately after my return from
23 vacation?
24 Q. At any time. I would like to
25 focus on the first time, if any, you spoke
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2 to him, for starters.
3 A. I believe it was during her
4 second admission.
5 Q. In September of 1992?
6 A. That is correct.
7 Q. What were the circumstances
8 under which you spoke to Dr. Brenner about
9 Mrs. Foley during that hospital stay?
10 A. He was asked to consult on her
11 because she had a problem with her liver.
12 Q. Did you request a consult?
13 A. Yes, I think I did. Either I did
14 or Dr. Daniels.
15 Q. And did you speak to him at all
16 about the Lyme test that Dr. Brenner
17 ordered in August of 1992, which was
18 reported as positive?
19 A. I don't believe so.
20 Q. Have you ever spoken to Dr.
21 Brenner at any time about the Lyme disease
22 test that he ordered for Mrs. Foley in
23 August of 1992 which was reported as
24 positive?
25 A. I am sure I did, yes.
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2 Q. Do you recall when?
3 A. Probably before our last-- our
4 first deposition.
5 Q. What were the circumstances of
6 that conversation?
7 A. I asked him why would he have
8 ordered such a test.
9 Q. Where were you when you asked
10 him that?
11 A. I don't remember.
12 Q. What was Dr. Brenner's response?
13 A. I believe he said he didn't
14 know.
15 Q. And you said that you believe
16 you asked Dr. Brenner that question before
17 our last meeting?
18 A. Before our first meeting.
19 Q. Close to the first meeting?
20 MR. BILLIG: Objection to the
21 form of the question.
22 Q. In other words, are we talking
23 about in 1995?
24 MR. BILLIG: That is a different
25 question.
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2 A. Yes.
3 Q. Did you discuss anything else
4 with Dr. Brenner at that time or any other
5 time regarding Mrs. Foley's positive Lyme
6 test?
7 A. I don't believe so.
8 Q. In your experience, Doctor, do
9 Lyme disease rashes return in some
10 patients cases, not necessarily in the
11 same location?
12 MR. BILLIG: I have no object to
13 the form. Return when?
14 Q. In other words, in your
15 experience of treating Lyme disease
16 patients, do Lyme patients who have an ECM
17 rash ever go a period of time where they
18 have no rash and then one or more rashes
19 crop up which you relate to Lyme disease?
20 A. In my experience, no.
21 MR. MAURER: Off the record.
22 (Discussion held off the record.)
23 Q. After 9/8/92, Doctor, when was
24 the next time that you treated Mrs. Foley,
25 whether it be in the office or at the
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2 hospital?
3 A. I would have to look at the
4 hospital records. To answer your question,
5 there is a hospital note on 9/13, 9/14,
6 9/15, 9/16, 9/18, 9/19.
7 Q. Let's start at 9/13 and let's go
8 in order.
9 A. One is going to have to check
10 order sheets to see whether I saw her
11 before that. She was seen by me on 9/9.
12 Q. Okay. Let's start with 9/9.
13 A. 9/9, a speech therapist was
14 ordered.
15 Q. Why was that?
16 A. I assume there was some problem
17 with Mrs. Foley's speech.
18 Q. Did you relate the speech
19 difficulties to her Lyme disease
20 condition?
21 A. Yes.
22 Q. And what specifically about her
23 Lyme disease condition was causing her to
24 need speech therapy?
25 A. She had weakness of the muscles
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2 around her left side of her face.
3 Q. And that was related to the
4 Bell's palsy?
5 A. That is correct.
6 Q. Could you do me a favor, please,
7 and I don't say this in any critical way,
8 I have difficulty reading some of your
9 notes, I would appreciate it if you could
10 read the notes you have for each of those
11 visits.
12 A. Do I have to follow the rules of
13 reading "RX" instead of "treated"?
14 Q. I think it would be best to read
15 exactly what you have instead of
16 deciphering what you meant. If it said
17 "RX," please say that.
18 A. 9/13/92--
19 Q. Let's start with 9/9; okay?
20 A. There is a note in the order
21 sheet, "speech therapist."
22 Q. That is all?
23 A. That is correct.
24 Q. On 9/13, could you read that for
25 me out loud?
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2 A. "C/O stiffness, right side of
3 neck," a C with a slash on top of it,
4 "really mild muscle ache, neck subtle,
5 probably secordary to position" with C
6 with a line over it, "pillows." Afebrile,
7 ambulation-- ambulatory and improving, at
8 the same time, I ordered moist heat to
9 neck, three times a day, a half an hour
10 each time."
11 Q. Okay.
12 Is that everything for that
13 note?
14 A. Correct.
15 Q. When is the next?
16 A. 9/14. "Afebrile, improving, C/O
17 pains right neck" going down with an arrow
18 "down right arm, R arm."
19 Q. What is next?
20 A. Ordered on 9/14, "PT to neck and
21 right arm, pinched nerve, right neck,
22 Number 2, rest roll 15 milligrams H6 PRN,
23 number three eye patch, L eye closed."
24 Q. What does "rest roll" mean?
25 A. Sleeping medication.
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2 Q. Why did you prescibe rest roll?
3 A. I would have prescribed it if
4 the patient complained of having
5 difficulty in sleeping but I just ordered
6 it if necessary.
7 Q. Was Mrs. Foley having any
8 problems sleeping because of her inability
9 to close her left eye?
10 A. They are not related.
11 Q. Is that everything for 9/14?
12 A. That is correct.
13 Q. What is next?
14 A. Note 9/15. "Much improved,
15 speech clear, C/O, back itch probably
16 secordary to sweating, complains C/O
17 paresthesia, both hands, pinched nerve in
18 neck."
19 Q. The "pinched nerve in neck," was
20 that your diagnosis?
21 A. Correct.
22 Q. Is there any--
23 A. Yes, "9/15, Rocephin, two grams
24 IV for a total of 21 days was a reorder."
25 Q. Of what Dr. Daniels had started
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2 her on?
3 A. That is correct.
4 On 9/15, I renewed her
5 antibiotics.
6 Q. What antibiotic?
7 A. The Rocephin.
8 Q. That is what you just told me
9 about?
10 A. There is a separate sheet for a
11 reorder of antibiotics.
12 Q. Now, you are reading from the
13 physicians' order sheet?
14 A. Correct.
15 My note reads "Number 1, renew
16 antibiotic, Number 2, back care, getting
17 rash from perspiration, cream, powder,
18 lamb's wool."
19 Q. What is the next treatment,
20 according to the record?
21 A. The next treatment--
22 Q. Or visit?
23 A. "9/16, afebrile, continues to
24 improve, ambulatory, less pain, will
25 arrange for home care for, I believe, that
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2 is five days." Order sheet reads "1,200
3 calorie diabetic, low-fat diet, please
4 have home care to arrange for continued IV
5 Rocephin, total-- total three"-- part of
6 it is cut off "as of Sunday or Monday."
7 It probably says "three days more as of
8 Sunday or Monday." Number 3, "add
9 hydrocortisone one percent to anal rash,
10 BID," which means twice a day.
11 Q. What is next?
12 A. "9/18, afebrile, continues to
13 improve, arranging for outpatient RX,
14 still with pain, right arm, looking for
15 Monday discharge." On 9/17, I decreased
16 the same diet to 1,000 calorie, not 1,200
17 calorie.
18 Q. What was that date?
19 A. 9/17.
20 Q. Okay.
21 So the day before?
22 A. I DC, eye patch and I DC'd her
23 fluid restriction. On 9/10, my note
24 remained afebrile and C/O, occasional left
25 instep pain rule out gout, at the same
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1 RICHARD S. KLEIN
2 time, I ordered a CBC, SMAC, lights, sed
3 rate for the same morning." On 9/20, my
4 note is "afebrile, still with right arm
5 pain during the evening."
6 Q. I'm sorry, "during the evening"?
7 A. "During the p.m."
8 "9/20, I renewed her Ativan,
9 Number 2, I gave her two Tylenols, X4 H
10 while awake. On 9/21, my note reads "she
11 is afebrile, C/O, subcostal ache
12 bilaterally greater than the left, rule
13 out prior abdominal syndrome, questionable
14 common duct stone," I was referring to her
15 prior admission.
16 Q. Of July 30th?
17 A. That is correct.
18 On the 21st, "an EKG was
19 ordered, a gallbladder ultrasound, rule
20 out common duct stone, Number 3, liver
21 function test, lFT and a serum amylace was
22 ordered, the patient was to be kept NPO
23 until after her ultrasound, I DC'd her
24 Codeine and I gave her Darvocet N 100, one
25 X4 HPRN."
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2 Q. Did the gallbladder ultrasound
3 test get performed?
4 A. I am sure it did.
5 Q. And did it come back negative
6 for a stone or any other abnormality?
7 A. On 9/21, "a common duct size
8 measures up to 7.5 millimeters, pancreas
9 not visualized."
10 Q. And what was the significance,
11 if any, of that test result; did it rule
12 out a stone?
13 A. I don't remember. "Her
14 gallbladder, the common duct, I thought,
15 was slightly enlarged. Because of that,
16 the next day, on 9/22, the patient, she
17 was afebrile, complained of bandage across
18 ribs, GGT was elevated, that is a liver
19 function test, ultrasound results were
20 pending, recent normal cardio, light
21 stress test, pressure abdomen secordary to
22 pinched nerve, radicular"-- what I was
23 trying to say is that she had a radicular
24 type of a pain from her thoracic 1 or 2
25 with a question mark. At that time--
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2 Q. Did you order any tests to
3 determine whether or not she, in fact, had
4 any sort of musculoskeletal condition that
5 was causing a pinched nerve that would
6 cause the abdominal pressure?
7 A. I ordered an upper thoracic
8 spine test to look at the disk and
9 increased the Darvocet N to every Q3 HPRN.
10 Q. And what was the results of the
11 diagnostic studies of the spine?
12 A. There is disfused spondylosis
13 with no other significant findings.
14 Q. Was there any diagnostic workup
15 that you had ordered which shed light on
16 whether or not she had a pinched nerve and
17 a thoracic spine causing the abdominal
18 pressure?
19 A. I did not order anything because
20 the next day the patient-- we called Dr.
21 Brenner to see the patient that day and he
22 ordered tests.
23 Q. On 9/23, did you see her?
24 A. On 9/23 I did not see her.
25 Q. On 9/23, "Dr. J. Klein had a CT
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2 scan of Mrs. Foley's abdomen and said it
3 was a normal exam;" is that right?
4 A. CAT Scan--
5 Q. The impression was normal exam,
6 right?
7 A. That is what the impression
8 says.
9 Q. Is Dr. J. Klein related to you?
10 A. No.
11 Q. And "X rays were obtained and
12 interpreted by Dr. Jack Levine on 9/23/92
13 pertaining to the chest and right ribs;"
14 is that correct?
15 A. Dr. Daniels ordered X rays of
16 the patient's right rib cage and they were
17 read as negative.
18 Q. Negative?
19 A. Negative exam by Dr. Levine.
20 Q. Is a finding of a common duct
21 size measuring under to 7.5 millimeters
22 abnormal?
23 A. I thought it was at the time.
24 MS. RYAN: Can I have the last
25 question repeated, please?
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2 (The pending question was read
3 as requested.)
4 Q. With regard to the X rays
5 obtained on 9/9/92 and interpreted by Dr.
6 Richard Rizzuti, could I be correct that
7 there was no specific findings that
8 explained the abdominal pressure that you
9 thought may have been related to a
10 thoracic spine pinched nerve?
11 A. Just the opposite.
12 Q. What do you mean?
13 A. The X rays showed that she had
14 degenerative changes or arthritic changes
15 in her lower cervical and thoracic area
16 which would account for radicular pain
17 from a pinched nerve.
18 Q. Well, there is nothing
19 specifically here that would explain the
20 abdominal pain, is there? That is a lot of
21 speculation, isn't it, to connect the X
22 rays being interpreted as showing
23 degenerative changes and there being a
24 specific pinched nerve at a given level,
25 isn't that a little speculative?
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2 (Ms. Fournier leaves the
3 deposition room.)
4 MR. BILLIG: I would object to
5 the form. I mean clearly your questions
6 are argumentative.
7 Q. To assume that there was
8 something specifically at the level of the
9 spine that would have correlated with the
10 abdomen in the way of degenerative
11 changes, there is nothing in the report
12 that would be a reasonable basis for you
13 to say that there was something at a given
14 level that would suggest a pinched nerve
15 responsible for the pressure pain in her
16 abdomen, true?
17 A. The patient had a
18 hospitalization in July wherein she had an
19 acute abdominal syndrome. At that time,
20 she was evaluated in September of '92, it
21 was my feeling that she may have a
22 reoccurrence of that same syndrome which
23 made us think about a common duct stone.
24 The negative evaluations for a
25 common duct stone and the negative
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2 findings in her abdomen would therefore
3 make one look for other causes and one of
4 the common causes would be radicular pain
5 from a pinched nerve in the back and it is
6 very common to find degenerative changes
7 that would suggest that such a pinched
8 nerve does exist.
9 Q. There is nothing in the X ray
10 report that would provide a basis for a
11 doctor to conclude that there was a
12 pinched nerve at the level of the spine
13 that correlates with the dermatome
14 affecting the abdomen, is there?
15 A. It is very suggestive.
16 Q. Is there anything specific that
17 makes reference to a specific level of the
18 spine?
19 A. The report says that "she had
20 degenerative changes throughout the spine"
21 and that is very suggestive of a pinched
22 nerve.
23 Q. The report doesn't say
24 "degenerative changes throughout the
25 spine," it says "thoracic spine shows
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2 degenerative changes," so you don't know
3 whether or not the film showed
4 degenerative changes at the level of the
5 thoracic spine that correlates with the
6 nerve root that has a dermatome affecting
7 the abdomen, do you?
8 A. I was referring specifically to
9 the cervical spine that described a
10 degenerative change in a specific
11 location.
12 Q. The dermatome for the cervical
13 spine has nothing to do with the abdomen,
14 does it?
15 A. In this patient it probably did.
16 Q. Why do you say that?
17 A. Because the dermatome was the
18 lower chest and that is where her cervical
19 spine and thoracic degenerative changes
20 were.
21 Q. You are saying her lower chest
22 is the area of the abdominal pressure?
23 A. Upper abdominal pressure, yes.
24 (Ms. Fournier reenters the
25 deposition room.)
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2 Q. When is the next time you saw
3 Mrs. Foley after 9/22/92?
4 A. 9/24.
5 Q. Was that in the hospital or in
6 the office?
7 A. Excuse me one second. The
8 patient also had a herniated disk that was
9 diagnostic of the pain in her upper
10 abdomen she had an MRI on 9/9/92.
11 MR. BILLIG: You're going back to
12 a prior question?
13 THE WITNESS: Yes, to the last
14 question.
15 Q. Doctor, the herniated disk that
16 you're referring to was at what level of
17 the cervical spine, according to the MRI
18 report?
19 A. Herniation is at the C5, C6.
20 Q. Do you know what the dermatome
21 is for the C5 nerve of root, Doctor?
22 A. I believe it's mid chest.
23 Q. If I were to suggest to you that
24 it was distributed down the arms, would
25 that refresh your recollection?
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2 A. It also goes down the chest.
3 Q. So, you attribute the pressure
4 pain in Mrs. Foley's abdomen that you
5 referred to a little while ago to a
6 herniated disk at the C5 level based upon
7 the MRI result that you just referred to?
8 A. I don't remember then what I
9 attributed it to but it can be secordary
10 to a herniated disk, correct.
11 Q. Where did you see Mrs. Foley on
12 September 24, 1992?
13 A. On 9/24, I saw Mrs. Foley in the
14 hospital, "she was afebrile, complained of
15 pain in her right arm, still with a
16 bandage sensation around her hypogastrium
17 bilaterally."
18 Q. What were you referring to?
19 A. That the patient most probably
20 had radicular pain from a pinched nerve in
21 her cervical and thoracic spine.
22 Q. What else is there in the note,
23 anything else?
24 A. "Please arrange discharge, IV
25 therapy for Friday." The next time the
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2 patient was seen was on 9/25, "afebrile,
3 in good spirits, negative exam, facial
4 muscles more strengthened, discharge. 9/25
5 discharge note-- the discharge was
6 ordered.
7 Q. Was she still on Rocephin at
8 that time, IV?
9 A. That is correct.
10 Q. When was the next time you saw
11 Mrs. Foley after September 25, 1992?
12 A. Mrs. Foley was seen in my office
13 on 10/1-- I don't know whether that is a 1
14 or a 5.
15 THE WITNESS: What date was
16 she discharged?
17 MR. BILLIG: Look at all of your
18 notes.
19 MR. MAURER: 10/1 is where you
20 are looking at, where it says "weight, 110
21 and a half"?
22 A. Right, so it had to be 10/1.
23 Q. Could you read that, please?
24 A. "One day post IV, Rocephin doing
25 better, has revolving left Bell's palsy
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2 and cervical disk and questionable pain in
3 arm secordary to Lyme, two physical
4 therapists and neurologists seen in ten
5 days."
6 Q. So, you considered the pain in
7 her arms possibly related to her Lyme
8 disease?
9 A. Well, it was kind of difficult
10 because Mrs. Foley complained of pain in
11 her right arm over many years and she had
12 evidence of cervical spine as well as
13 thoracic degenerative disease but I had to
14 also consider that that may be a third
15 complicating factor.
16 Q. The nurse's note above your
17 handwriting note on 10/1/92 indicates that
18 "Mrs. Foley finished the Rocephin the
19 previous day," that would have been
20 September 30, 1992?
21 A. That is correct.
22 Q. When is the next time that you
23 saw Mrs. Foley?
24 A. 10/8.
25 Q. Did you see her in between 10/8
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2 and 10/1?
3 A. Yes. Thank you. On 10/3.
4 Q. Doctor, why is it that in your
5 office chart you have notations in
6 chronological order and you go from
7 10/1/92 to 10/8/92 and there is a separate
8 two page entry for 10/3/92? Was the
9 10/3/92 notation subsequently made, in
10 other words, after 10/8/92?
11 MR. BILLIG: That is a specific
12 question.
13 A. On 10/3/92, a note was made when
14 I saw the patient and her husband.
15 Q. How come it's separate from the
16 chronological order of your office chart?
17 A. Because I knew I was going to
18 have an awful lot to say.
19 Q. You used the same paperwork,
20 didn't you, that you use for your office
21 chart--
22 A. That is correct.
23 Q. -- When making the 10/3/92 note?
24 A. Yes.
25 Q. And when did you make this
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2 10/3/92 note, was it made on 10/3 or a
3 subsequent date?
4 MR. BILLIG: Asked and answered.
5 A. I answered that.
6 Q. And that was on that date; is
7 that correct?
8 A. I answered that.
9 Q. I'm sorry, I don't recall what
10 you said.
11 A. Well, read it back.
12 MR. BILLIG: He said "yes."
13 Q. What were the circumstances
14 under which you made this 10/3/92 note?
15 A. Mr. and Mrs. Foley came in to my
16 office being quite irate and angry, that
17 was obvious and they wanted to sit down, I
18 believe, they did not have an appointment,
19 I think they just came in. They came in
20 and just wanted to come in and vent their
21 anger.
22 Q. And does the note that you made
23 on 10/3/92 encompass all of the points
24 that you made to them during their
25 meeting?
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2 A. I believe it does.
3 Q. Would you be kind enough to read
4 word for word that note, for the record?
5 A. "Saturday meeting with husband
6 and Mrs. Elizabeth Foley, long
7 conversation, quite upset regarding
8 illness and filling out of form. Number 1,
9 angry that patient was admitted July with
10 weakness and fever and not diagnosed as
11 Lyme, explained fever and weakness occur
12 in so many illnesses and explosive
13 diarrhea, it's not a characteristic
14 presenting sign of Lyme and liver tests
15 were quite elevated, higher than mild
16 transaminase elevation, seen in
17 generalized viral Lyme illness and Liz got
18 99 percent better by time she went home.
19 Liver test got better and felt great.
20 "Number 2, angry not told had
21 positive titre, explained Elizabeth was
22 treated in past two years for Lyme and
23 that titre could stay positive forever,
24 that there was no feeling this represented
25 acute disease, even though the result was
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2 not placed in my box until one and a half
3 weeks post discharge. It was of no
4 consequence to treat a titre when patient
5 was well and had Lyme within two years. In
6 fact, patient was well even at 8/27 visit,
7 that is almost one month after discharge.
8 "Also expressed my upsetness
9 that on 9/5 when they called, stating she
10 was in lots of pain and had trouble
11 sleeping, that I really wanted to
12 see/examine her because these were new
13 symptoms. Also when Dr. Dee called me,
14 when Betty was in office 8/30/92 and
15 related to me that she was seen 8/29 for
16 acute onset pain in back associated with
17 pulling on heavy drawer, he asked about
18 positive titre from hospital (did I know
19 about it) and I told him it was my-- it
20 was unrelated in my mind to her admission
21 and due to secordary old infection. (As
22 hospital course was not that of Lyme that
23 she had Lyme one to two years prior and
24 that she was completely over July
25 illness).
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2 "I felt although it's
3 conceivable this present illness could be
4 related to the bizarre presentation of
5 July, I personally believe this was a
6 completely new onset of Lyme and that one
7 could not use a Lyme test as a diagnostic
8 tool in someone who had relatively recent
9 Lyme.
10 "Also angry that disability
11 form was filled in with "mild" instead of
12 "severe." Betty, at this point, started
13 crying and she said she was upset that not
14 all of the symptoms she had (heartache,
15 fever, diarrhea, arm pain, et cetera, et
16 cetera were not put down). I just got
17 feeling they are angry because she got
18 sick and will jump at anything or anybody
19 to blame."
20 Q. Is it fair to say, Dr. Klein,
21 that a lot of what you indicated in this
22 note which you indicated to the Foley's on
23 10/3/92 was based upon what you stated to
24 be a fact that Mrs. Foley had had Lyme
25 disease within the last two years?
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1 RICHARD S. KLEIN
2 A. I'm sorry?
3 Q. You need to have it read it
4 back?
5 A. Yes.
6 (The pending question was read
7 as requested.)
8 MR. BILLIG: Note my objection to
9 the form of the question.
10 Do you understand it?
11 A. I wrote-- I was upset because I
12 was presented with two people that were
13 upset and I wrote what happened that day.
14 Q. With regard to your opinions
15 about whether or not Mrs. Foley had active
16 Lyme disease infection during her first
17 hospitalization in July and August of '92,
18 would I be correct that your opinion that
19 she did not have active infection was
20 based in part on your belief that Mrs.
21 Foley had Lyme disease within two years
22 before?
23 A. No, my belief was because of the
24 clinical presentation of the patient in
25 July had nothing to do with acute Lyme
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2 disease.
3 Q. Why did you make the reference
4 to Mrs. Foley having had Lyme disease
5 within two years before on this office
6 note?
7 MR. BILLIG: I have trouble with
8 "why did you make the reference."
9 Q. Why did you include in your
10 notes a reference to "Mrs. Foley having
11 had Lyme disease within two years before
12 the onset of the condition which caused
13 her hospitalization July 30, 1992."
14 MR. BILLIG: I object to the form
15 of the question that you're taking out of
16 context what-- the way the reference was
17 made.
18 Q. On the first page of the second
19 page note, just below the midline, there
20 is a paragraph that begins "even though."
21 Do you see it, Doctor?
22 A. Yes.
23 Q. If you follow that down seven
24 lines, it starts "in fact"-- wait a
25 minute. Go back to the "even though"
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2 paragraph, third line down in the middle
3 it says "it was of no consequence to treat
4 a titre when patient was well and had Lyme
5 within two years," am I reading that
6 accurately?
7 A. Yes.
8 Q. Why did you make reference to
9 Mrs. Foley having had Lyme disease within
10 two years at that point in your notation?
11 A. Because I was answering Number
12 2, "angry patient not told had positive
13 titre."
14 Q. What was there about Mrs. Foley
15 having Lyme disease two years before that
16 you felt was relevant to answering that
17 point?
18 A. I have answered this on many
19 occasions.
20 Q. I would like to have it clear
21 with regard to this notation which I am
22 questioning you about now.
23 A. I make mention in this note that
24 the patient had a completely different
25 disease in July and when I interpreted and
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2 went back and looked over her records,
3 when I found out about her positive test,
4 I made a medical decision that the patient
5 did not have Lyme disease as the cause or
6 any part of her July hospitalization, I
7 did that in good conscious after reviewing
8 the patient's record." I have answered
9 that question in December.
10 Q. The record you are referring to
11 is your office note for 11/17/90 when she
12 had her fourth Lyme disease test?
13 MR. BILLIG: No. Objection to the
14 form. The way he answered it back in
15 December, he reviewed the chart. He
16 testified that he reviewed the chart.
17 MR. MAURER: I understand.
18 Q. I am asking you when you made
19 reference to Mrs. Foley having had Lyme
20 disease within two years, were you
21 referring to anything to do with the
22 11/17/90 office visit at which time you
23 treated Mrs. Foley with Doxycycline for
24 three weeks?
25 A. If that was the last time that
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2 Mrs. Foley was treated for Lyme disease
3 prior to her August or September
4 hospitalization, then yes, that is
5 correct.
6 Q. Don't rely on what I am saying
7 on this point, please, I would rather you
8 rely on your own review of your notes.
9 MR. BILLIG: Take your time.
10 THE WITNESS: I will.
11 A. That is correct.
12 Q. And on that occasion of
13 11/17/90, you treated Mrs. Foley based
14 upon an in-house Lyme disease test
15 performed in your office which was
16 interpreted as positive; is that right?
17 A. That is correct.
18 Q. And would you also agree that
19 you made no notations of any findings with
20 regard to Mrs. Foley's condition on
21 11/17/90 which were consistent with Lyme
22 disease being present at that time?
23 A. As an oversight, yes.
24 Q. What do you mean "as an
25 oversight," Doctor?
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2 A. We answered that question in
3 December.
4 Q. Why did you add "as an
5 oversight"? Are you testifying that Mrs.
6 Foley had symptoms consistent with Lyme
7 disease at that time?
8 A. I answered that question in
9 1995.
10 MR. BILLIG: He previously
11 testified on that.
12 Q. You didn't say there was an
13 oversight, Doctor, according to my notes,
14 when I asked you previously about that. I
15 would like to know why it was an oversight
16 now.
17 A. I answered that question.
18 Q. I would like an answer now. I
19 don't recall any such testimony about it
20 being an oversight. I would like to know
21 why you are saying it now.
22 A. It was my standard practice to
23 treat people for symptoms. We discussed
24 the fact that I did not put the symptoms
25 down at that time. I testified to that.
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2 Q. Was there any notation on that
3 office visit of 11/17/90 by a nurse before
4 your own notations, Doctor, or the
5 notations of any other doctor who was
6 working for you at that time?
7 A. Answered.
8 Q. Answer the question, please,
9 Doctor.
10 A. No, I answered the question many
11 times in December. You kept me here for
12 seven hours at that time.
13 MR. BILLIG: We read the entire
14 note, he identified the individual whose
15 handwriting it is and his handwriting and
16 we discussed the entire 11/27/90 note. He
17 testified as to the presentation of the
18 patient and what he wrote down and what he
19 didn't write down.
20 MR. MAURER: My notes only have
21 to do with his notations, not what anybody
22 else wrote down on that date. Why don't we
23 clarify on that point?
24 MR. BILLIG: You did ask him.
25 MR. MAURER: I don't have the
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2 transcript and I can't verify if I did or
3 not.
4 Let's answer the question.
5 A. I answered the question before
6 and I am not going to answer it. If you
7 don't pay attention to my answers, I find
8 it disrespectful.
9 MR. BILLIG: Ask him the question
10 and let's move on. We will get through
11 this now. You want the doctor to read the
12 handwriting that is not his handwriting?
13 Q. Of 11/17/90, with regard to
14 symptoms, not height/weight.
15 A. I answered that.
16 MR. BILLIG: He previously
17 testified.
18 MR. MAURER: I would like him to
19 testify himself.
20 MR. BILLIG: He did.
21 MR. MAURER: He may have but I
22 don't have the transcript and I don't have
23 a notation, so please, humor me. Sometimes
24 I don't have notations, so just humor me.
25 THE WITNESS: That is why we have
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2 transcripts.
3 MR. BILLIG: The question is--
4 Q. What symptoms are noted in the
5 11/17/90 office note by anyone, other than
6 yourself?
7 MR. BILLIG: Symptoms--
8 MR. MAURER: Or complaints.
9 MR. BILLIG: Are there any
10 symptoms or complaints listed in the
11 11/17/90 note, other than by yourself?
12 THE WITNESS: How old was Mrs.
13 Foley?
14 MR. BILLIG: She was born in '25.
15 THE WITNESS: We are talking
16 what, 1991?
17 MR. BILLIG: 11/17/90.
18 THE WITNESS: That would make
19 her--
20 MR. BILLIG: Sixty-five on
21 11/17/90.
22 A. Mrs. Foley was in for a physical
23 that day and usually patients fill out a
24 complaint list when they come in for a
25 physical and I don't seem to have the
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2 complaint list.
3 Q. You have your complete chart
4 here for Mrs. Foley?
5 A. It's very possible that a
6 portion of the chart isn't here. I mean I
7 have whatever I own. For some reason, the
8 complaint list, unless she did not fill
9 one out-- usually a patient fills out a
10 history form, similar to the one I hold in
11 my hand, so I have to go by the note alone
12 and the note alone on 11/17 of '90, there
13 is no notation of any symptoms at that
14 time by anybody other than myself
15 (indicating).
16 Q. Contained within the chart which
17 we have previously marked.
18 MR. BILLIG: Plaintiff's 1 of
19 12/6/95.
20 Q. Are two forms which have numbers
21 in the upper right-hand corner written in
22 seven and 74, 74 says "Gem Star Analyzer
23 test acquisition form" and it's dated
24 11/17/90.
25 A. Can I assume we are done with
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2 11/17/90?
3 Q. That is what I am asking you
4 about and Number 74 says "general bio" and
5 it's dated 11/17/90 (GEN).
6 Are these two forms forms that
7 had to do with the Lyme test you did
8 in-house on 11/17/90?
9 A. That is correct.
10 Q. Is there anything on either one
11 of these forms that gives any indication
12 of any of Mrs. Foley's complaints or
13 symptoms that you would associate with
14 Lyme disease?
15 A. This question was asked in
16 December.
17 Q. I asked you nothing about these
18 two forms. It will not expedite your
19 deposition to have this sort of
20 commentary. Let's just do what we are here
21 for and we will leave.
22 MR. BILLIG: I don't recall this
23 being asked, Doctor.
24 A. No.
25 Q. How is the 11/17/90 test
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2 interpreted, was there a range within
3 which someone would be considered
4 borderline or clearly positive or clearly
5 negative?
6 A. The test was interpreted as
7 Lyme, slightly positive.
8 Q. Is that indicated on either of
9 these two sheets that I am referring to or
10 are you just referring to your office
11 note?
12 A. To my office note.
13 Q. Was there anything on either of
14 those two forms which provide information
15 that explains how one would interpret the
16 test and classify the test slightly
17 positive or whatever?
18 A. On those two pieces of paper?
19 (Ms. Fournier leaves the
20 deposition room.)
21 A. The interpretation of the low
22 flagella and low membrane probably refers
23 to the fact that it's a mildly positive
24 test.
25 Q. Do you have a copy of the insert
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2 that came with the test kit that was used
3 on 11/17/90?
4 A. I do not.
5 Q. Is the lab that made this
6 particular test kit which you purchased
7 and used on Mrs. Foley still in business,
8 to your knowledge?
9 A. I have no idea.
10 Q. Would I be correct that there
11 came a point in time that you referred
12 Mrs. Foley to a Dr. Kenneth Leigner?
13 A. You are incorrect.
14 Q. Why am I incorrect?
15 A. I never referred Mrs. Foley to
16 any Dr. Leigner.
17 Q. Do you know Dr. Kenneth Leigner?
18 A. Yes, I know him.
19 Q. Have you ever referred any
20 patients to Dr. Leigner?
21 A. No.
22 Q. Within your chart is a copy of a
23 letter from Dr. Leigner, could you find
24 it, please?
25 A. I have it (indicating).
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2 Q. Could I see it for a second,
3 please?
4 MR. BILLIG: Here (indicating).
5 Q. On the top right-hand corner,
6 this note says "referring physician, Dr.
7 Richard Klein" and the date of
8 consultation was 10/9/92, who provided you
9 with a copy of this note?
10 A. Dr. Leigner's office.
11 Q. Did you call Dr. Leigner's
12 office to inquire why they indicated that
13 you were the referring physician?
14 A. No.
15 MR. BILLIG: Objection.
16 Q. Did you write a letter to Dr.
17 Leigner's office to make such an inquiry?
18 A. No.
19 Q. Do you consider Dr. Leigner to
20 be an experienced physician in the
21 treatment and diagnosis of Lyme disease?
22 A. I don't know what you mean by
23 "experienced."
24 (Ms. Fournier reenters the
25 deposition room.)
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2 Q. Well versed. That is an area in
3 which he frequently practices and is well
4 familiar with the medical knowledge
5 relevant to treating Lyme patients.
6 MR. BILLIG: I am going to object
7 to the form of the question. He said he
8 never referred patients to Dr. Leigner.
9 MR. MAURER: That doesn't mean he
10 would have knowledge.
11 That is what I am asking. I am
12 asking if he considers him knowledgeable
13 in the treatment of Lyme disease.
14 MR. BILLIG: You are assuming
15 something in the question.
16 MR. MAURER: What question would
17 you like asked so we can finish up?
18 MR. BILLIG: Does he know Dr.
19 Leigner?
20 MR. MAURER: He said that
21 already.
22 A. You asked if I know Dr. Leigner.
23 Q. And you said "yes."
24 Now I am asking if he is well
25 versed in the treatment and diagnosis of
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2 Lyme disease.
3 A. In 1992 or today?
4 Q. '92.
5 MR. BILLIG: The problem that I
6 have, again, is that I know the names of
7 lots of physicians, that doesn't mean I
8 know qualifications, et cetera.
9 Q. In 1992, could you answer the
10 question with reference to that point in
11 time, Doctor?
12 A. In 1992, did I consider him to
13 be a knowledgeable expert in Lyme disease,
14 no.
15 Q. With reference to your 10/3/92
16 chart note where you made reference to
17 Mrs. Foley having had Lyme disease within
18 two years, was the 11/17/90 note the point
19 of reference for that statement?
20 A. Correct.
21 Q. And was that the exclusive point
22 of reference that you had in mind?
23 A. That is the time I treated her
24 accurately for Lyme disease, yes.
25 Q. Did your approach of diagnosis
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2 and treatment of Lyme disease change at
3 all between 11/17/90 and October of '92?
4 A. My approach to the treatment of
5 Lyme disease?
6 Q. Diagnosis and treatment.
7 A. I don't believe so.
8 MS. FOURNIER: Off the record.
9 (Discussion held off the record.)
10 Q. In your 10/3/92 note, on the
11 second page you indicated that "it's
12 conceivable that Mrs. Foley's presentation
13 could be related to the bazarre
14 presentation of July;" is that right?
15 A. Yes.
16 Q. Why is it that on the date of
17 your last deposition last week you said
18 that you were certain that her condition
19 in July or August of 1992 was not related
20 to her Lyme disease condition which was
21 treated in September?
22 MR. BILLIG: Is that a question?
23 Q. And then we see that in your
24 original 10/3/92 note, you said "it was
25 conceivable that the Lyme disease
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2 condition was related to her July bazarre
3 presentation," could you explain that for
4 me?
5 A. Yes, I was just thinking out
6 loud when I wrote this note and I guess I
7 wrote it angry and in haste. I guess I was
8 verbalizing but my conclusion was that it
9 wasn't.
10 Q. Are you saying that with
11 reference to where you wrote "it's
12 conceivable that that was written in
13 haste" and that you wouldn't agree with
14 that statement?
15 A. I didn't say that at all, I said
16 I was thinking out loud about it's
17 conceivable but then I discounted that
18 when I specifically wrote "I especially
19 believe that this is a sudden new onset of
20 Lyme disease," as I stated at our last
21 deposition.
22 MR. MAURER: Off the record.
23 (Discussion held off the record.)
24 Q. I don't think I asked you about
25 your last office visit in your chart dated
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2 10/8/92.
3 Could you please read the
4 information contained in there as best you
5 can?
6 A. "Weight, 212 pounds, down two
7 and a half pounds, seen by Lebrun with
8 pain, right upper leg for two days
9 intense. He feels possible diabetic
10 multi-neuropathy requiring two Darvocet
11 every four hours, pain associated with
12 pain in right sciatica, probably sciatica,
13 right arm not as bad, complains of
14 tiredness and nausea, although symptoms of
15 neuro-Lyme can take months to subside,
16 perhaps."
17 Q. FM is family?
18 A. "Perhaps family may be calmed
19 with second opinion and further
20 treatment."
21 Q. And X is off after the R in my
22 copy, is there an "RX" there?
23 A. "RX. Dr. Leigner, the non-ID
24 expert in Lyme," as his name was mentioned
25 by Bob.
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2 Q. Could you read that last part
3 again?
4 A. "The non ID" question mark
5 "expert in Lyme."
6 Q. What does that mean?
7 A. Dr. Leigner at that time had a
8 reputation of being a Lyme doctor in a
9 negative significance.
10 Q. How so?
11 A. I believe his reputation was
12 that he treated many people for Lyme
13 disease with intravenous therapy who
14 people felt did not have Lyme disease.
15 Q. And when you made that notation,
16 did you consider Dr. Leigner to be "one of
17 the Lymologists" as you refer to them in
18 your article which we marked at your last
19 deposition as Plaintiff's Exhibit 7?
20 A. I didn't write the article until
21 1995.
22 Q. I understand but I am asking you
23 with regard to what you just testified to
24 about Dr. Leigner's reputation, was that
25 reputation such that he would fall into
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2 the category as the Lymologist as you
3 determined him in your article?
4 A. I wasn't specifically referring
5 to Dr. Leigner in the article, if that is
6 your question, not at all.
7 MR. MAURER: Off the record.
8 (Discussion held off the record.)
9 MR. BILLIG: Just let the record
10 reflect that Mr. Maurer and his client are
11 stepping out.)
12 Q. Doctor, do you have a separate
13 record keeping system for billing for
14 patients?
15 A. I don't know what that means.
16 Q. That means that you produced an
17 office chart that is supposed to be the
18 entire chart for Mrs. Foley, I would like
19 to know if there are bills in here for all
20 the treatments you rendered to her.
21 A. No.
22 Q. Where did you keep bills for
23 your patients if they are not in the
24 chart?
25 A. They would probably be
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2 non-existent today because we went on
3 computer about three years ago, two years
4 ago.
5 Q. Were you aware when you went on
6 computer that there are rules and
7 regulations in New York State requiring
8 professionals to keep records for seven
9 years?
10 A. If you are referring to the fact
11 that was I aware of whether I have to keep
12 billing records, I don't know if I have
13 the billing records, I said I probably
14 don't.
15 Q. If you had them, where would
16 they be?
17 A. Possibly in the attic of my
18 office building.
19 MR. MAURER: I would ask that I
20 be provided with a copy of all the billing
21 records, if they exist.
22 Are you amenable to that, Jacob?
23 MR. BILLIG: We will take that
24 under advisement.
25 ** INFORMATION REQUESTED TO BE SUPPLIED:
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2
3 --------------------------------------
4 MR. MAURER: Do I have to serve a
5 separate notice?
6 MR. BILLIG: I ask that all
7 requests be made in writing, that is
8 probably the best way to do it.
9 MR. MAURER: Okay.
10 Q. Doctor, at your last deposition,
11 I believe I asked you if you can look back
12 at your files to see if you had
13 cross-referenced any other materials
14 pertaining to Lyme disease that maybe
15 wasn't there under Lyme that you had under
16 other things, have you had a chance to do
17 that?
18 A. I did.
19 Q. Did you come up with anything
20 else?
21 A. None.
22 MR. MAURER: That is all I have.
23 (Time noted: 3:45 p.m.)
24 oOo
25
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2
3 STATE OF NEW YORK )
4 ss:
5 COUNTY OF WESTCHESTER)
6
7 I, ROBERT KLEIN, the witness
8 herein, having read the foregoing
9 testimony of the pages of this deposition
10 do hereby certify it to be a true and
11 correct transcript, subject to the
12 corrections, if any, shown on the attached
13 page.
14 oOo
15
16
17 ______________________
18 ROBERT KLEIN
19
20
21
22 Subscribed and sworn to before me
23 this______day of___________, 19__
24 ________________________________
25
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2 STATE OF NEW YORK ) Pg__of__Pgs
3 ss:
4 COUNTY OF WESTCHESTER)
5 I wish to make the following changes,
6 for the following reasons:
7 PAGE LINE
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2 C E R T I F I C A T E
3
4 STATE OF NEW YORK )
: SS.:
5 COUNTY OF KINGS )
6
7 I, KARYN CHIUSANO, a Notary
8 Public for and within the State of New
9 York, do hereby certify:
10 That the witness whose
11 examination is hereinbefore set forth was
12 duly sworn and that such examination is a
13 true record of the testimony given by this
14 witness.
15 I further certify that I am not
16 related to any of the parties to this
17 action by blood or by marriage and that I
18 am in no way interested in the outcome of
19 this matter.
20 IN WITNESS WHEREOF, I have
21 hereunto set my hand this 28th day of
22 March, 1996.
23
24
25 ___________________________
KARYN CHIUSANO
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2 INDEX
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