Neil Clinger, MD
1 NEAL CLINGER,
2 BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED
3 AS FOLLOWS:
4 DIRECT EXAMINATION
5 BY MR. MAJOR:
6 Q. DOCTOR, STATE YOUR NAME AND OCCUPATION FOR THE RECORD.
7 A. NEAL CLINGER. I'M A PHYSICIAN, RADIOLOGIST.
8 Q. WHERE ARE YOU CURRENTLY EMPLOYED?
9 A. AT DAVIS HOSPITAL, AND ALSO OGDEN REGIONAL MEDICAL
10 CENTER.
11 Q. AND WHAT IS YOUR SPECIALTY? CAN YOU DESCRIBE THAT?
12 A. I HAVE A FELLOWSHIP TRAINING IN NEURORADIOLOGY WHICH
13 DEALS WITH THE HEAD AND SPINE.
14 Q. AND WHERE DID YOU GO TO LAW -- WHERE DID YOU GO TO
15 MEDICAL SCHOOL?
16 A. UNIVERSITY OF ARIZONA.
17 Q. WHEN WAS THAT?
18 A. THAT WAS THE YEARS 1986 THROUGH 1990.
19 Q. WHERE DID YOU DO YOUR RESIDENCY AT?
20 A. UNIVERSITY OF ARIZONA.
21 Q. AND HOW LONG HAVE YOU BEEN -- WHAT DID YOU DO AFTER YOU
22 HAD DONE YOUR RESIDENCY?
23 A. I DID A YEAR FELLOWSHIP AND THEN I MOVED UP HERE AND
24 TOOK A JOB AT DAVIS HOSPITAL.
25 Q. WORKED THERE EVER SINCE?
1157
1 A. YES.
2 Q. NOW, WHAT EXACTLY -- CAN YOU DESCRIBE WHAT YOUR
3 SPECIALTY IS OR WHAT YOU DO, IN LAYMEN'S TERMS FOR THE JURY,
4 WHAT THAT INVOLVES?
5 A. INTERPRET X-RAY EXAMINATIONS WHETHER THEY BE CAT SCANS
6 OR MAGNETIC RESONANCE STUDIES, ULTRASOUNDS, DEALING WITH
7 DIFFERENT PARTS OF THE HUMAN BODY.
8 Q. AND YOU'VE BEEN DOING THAT FOR HOW LONG?
9 A. ABOUT 11 YEARS NOW SINCE RESIDENCY?
10 Q. AND JUST SOME BACKGROUND INFORMATION FOR THE JURY. WHAT
11 DOES -- WHAT IS A CAT SCAN?
12 A. A CAT SCAN IS A DEVICE THAT UTILIZES X-RAYS AND DOES
13 SLICES SEQUENTIALLY THROUGH A PART OF THE HUMAN BODY,
14 WHETHER IT BE THE HEAD OR THE CHEST OR THE ABDOMEN. IT
15 TAKES INFORMATION AT THAT SECTION OF THE BODY TO EVALUATE
16 HOW THE ORGANS LOOK, TO SEE IF THERE'S ANY PATHOLOGY LIKE
17 BLEEDING OR A TUMOR OR ANYTHING ELSE GOING ON IN THE BODY.
18 Q. OKAY. AND WHAT'S AN M.R.I.?
19 A. AN M.R.I., SAME KIND OF FEATURE ONLY A DIFFERENT
20 TECHNOLOGY. INSTEAD OF X-RAYS IT USES MAGNETIC WAVES AND IT
21 USES THE FREE HYDROGEN IN THE BODY AND THE -- THE ELECTRONS
22 AND FORMS DIFFERENT MAGNETIC FIELDS WITH THOSE AND IS ABLE
23 TO UTILIZE THE MAGNETISM IN THE HUMAN BODY TO SEE INSIDE THE
24 BODY, SEE WHAT PATHOLOGY MAY BE GOING ON, MAKE DIAGNOSIS.
25 Q. AND YOU'RE THE ONE WHO PERFORMS THAT?
1158
1 A. THE TECHNOLOGIST DOES THE EXAMINATION AND THEN I
2 INTERPRET THE EXAMINATION ONCE IT'S BEEN FINISHED.
3 Q. WHEN YOU DO AN INTERPRETATION, DO YOU THEN WRITE UP A
4 REPORT ON THAT?
5 A. YES, WE DO.
6 Q. NOW, IS ONE OF THE THINGS THAT YOU OFTEN LOOK FOR WHEN
7 YOU'RE -- WHEN YOU'RE ASKED TO PERFORM THESE PARTICULAR --
8 EITHER THE M.R.I. OR THE CAT SCAN IS FOR A STROKE?
9 A. YES.
10 Q. WHAT TYPE OF THINGS ARE YOU LOOKING FOR WHEN YOU'RE
11 LOOKING FOR A STROKE?
12 A. WITH THE MAGNETIC RESONANCE STUDY OR M.R.I. WE ARE
13 LOOKING FOR AREAS OF BRIGHT SIGNAL WITHIN THE BRAIN --
14 Q. AND WHAT'S THAT?
15 A. -- ABNORMAL AREAS. IT'S LIKE WHITE -- WHITE AREAS ON
16 CERTAIN SEQUENCES THAT SHOULDN'T BE THERE THAT HAVE KIND OF
17 PUSHED THE NORMAL PARTS OF THE BRAIN AND HAVE CAUSED
18 EFFACEMENT OR EDEMA, SWELLING IN THE BRAIN. WE LOOK FOR
19 BLOOD IN THE BRAIN. THAT CAN BE ASSOCIATED WITH STROKE. WE
20 LOOK FOR CHANGES WHERE PARTS OF THE BRAIN ARE BEING SHIFTED
21 OR MOVED WHERE THEY SHOULDN'T BE. THOSE ARE THE MAIN
22 THINGS.
23 Q. WHAT -- WHAT GENERALLY CAUSES A STROKE?
24 A. A STROKE CAN BE EITHER DUE TO A LACK OF BLOOD FLOW, DUE
25 TO UNDER PROFUSION, OR IT CAN BE DUE TO EMBOLIC OCCLUSION
1159
1 WHERE LIKE A BLOOD CLOT HAS COME UP FROM SOMEWHERE ELSE FROM
2 THE HEART OR AN ARTERY AND OCCLUDED A VESSEL SO THE BLOOD
3 CAN'T GET TO THE AREA OF THE BRAIN AND THE BRAIN SLOWLY IS
4 DYING FROM LACK OF OXYGENATION, NO BLOOD IS ABLE TO GO
5 THERE.
6 Q. AND THOSE ARE THE TYPE OF THINGS THAT SHOW UP ON THESE
7 M.R.I.'S?
8 A. UH-HUH.
9 Q. AND CAT SCANS?
10 A. YES. THAT'S WHAT WE'RE LOOKING FOR.
11 Q. I'D LIKE TO RECALL YOUR ATTENTION BACK TO THE 12TH DAY
12 OF JANUARY OF 1996 AND ASK YOU, WERE YOU WORKING FOR THE
13 DAVIS HOSPITAL ON THAT OCCASION?
14 A. YES, I WAS.
15 Q. LET ME SHOW YOU WHAT'S BEEN MARKED AS PLAINTIFF'S
16 EXHIBIT NUMBER 7, SPECIFICALLY PAGE 0027, AND ASK YOU IF YOU
17 CAN IDENTIFY THAT?
18 A. THAT IS A DICTATION THAT I SUBMITTED FOR A MAGNETIC
19 RESONANCE STUDY OF A BRAIN ON ENNIS ALLDREDGE ON 1/12/96
20 FROM DAVIS HOSPITAL.
21 Q. AND WHO ASKED YOU TO PERFORM THIS PARTICULAR STUDY?
22 A. WELL, THE REFERRING DOCTOR IS DR. ROBERT WEITZEL.
23 Q. AND DO YOU KNOW WHY THIS PATIENT WAS REFERRED?
24 A. IT WAS TO EVALUATE WHY THE PATIENT WAS COMBATIVE AND TO
25 RULE OUT A STROKE OR AN INFARCT.
1160
1 Q. AND WAS THIS PERFORMED IN THE NORMAL PROCEDURES, THE
2 NORMAL --
3 A. YES, IN THE NORMAL WAY THAT WE -- WE DO.
4 Q. WHAT WAS -- WAS THERE ANY PARTICULAR PROBLEM WITH THIS
5 PARTICULAR --
6 A. WELL, THE PATIENT, AS STATED IN THE REPORT HERE, HAD TO
7 BE SEDATED -- WHICH WE DO OCCASIONALLY -- BECAUSE THE
8 PATIENT WOULD NOT HOLD STILL, SO IT COMPROMISED THE -- THE
9 STUDY. THE PATIENT WAS NOT ABLE TO HOLD AS STILL AS WE
10 WANTED HIM TO BE SO -- HE WAS MOVING AROUND, COMBATIVE, AND
11 SO THAT'S ALWAYS A LITTLE BIT DIFFERENT. IT LED TO THE
12 STUDY BEING A LITTLE LESS OPTIMAL THAN WE'D LIKE IT TO BE
13 BECAUSE OF MOTION.
14 Q. MOTION. DID THAT CAUSE A SITUATION WHERE IT COULD NOT
15 BE READ?
16 A. NO. IT WAS COMPROMISED, BUT IT STILL WAS TECHNICALLY
17 SATISFACTORY FOR US TO DO AN EVALUATION ON IT.
18 Q. OKAY. AND BASED ON YOUR REVIEW OF THIS -- THE M.R.I.,
19 DID YOU FIND ANY TYPE OF INDICATION OF A STROKE?
20 A. WE SAW SOME AREAS THAT INDICATED A POSSIBLE STROKE, BUT
21 IT WAS VERY DIFFICULT TO DATE, IF IT WAS OLD OR NEW AND IF
22 IT HAD BEEN THERE BEFORE OR NOT. AND FROM WHAT WE SAW,
23 NOTHING THAT LOOKED SIGNIFICANT AT THE TIME. COULD HAVE
24 BEEN AN EARLY STROKE THAT WE'RE JUST DURING THE PROCESS OF
25 DEVELOPING RIGHT NOW, BUT WE SUGGESTED THAT WE GET A
1161
1 FOLLOW-UP TO SEE IF ANYTHING HAD TRANSPIRED OR IF ANYTHING
2 WAS CHANGING OVER TIME.
3 Q. WAS THERE ANY -- WAS THERE ANYTHING THAT YOU FOUND THAT
4 WAS ACUTE, IMMEDIATELY?
5 A. WELL, I'VE SUGGESTED THAT POSSIBLE AREA IN THE LEFT
6 OCCIPITAL LOBE IS A LITTLE ASYMMETRIC AND IT COULD BE AN
7 ACUTE OR SUBACUTE STROKE, BUT COULD HAVE BEEN OLD AS WELL.
8 IT WAS VERY HARD TO EVALUATE AND INTERPRET WHAT THE AGE WAS
9 ON IT.
10 Q. SO BASIC -- DID YOU HAVE -- DID YOU HAVE A CONCLUSION AS
11 TO WHETHER OR NOT THIS PATIENT -- YOU COULD SAY WHETHER OR
12 NOT THIS PATIENT HAD A STROKE?
13 A. MY CONCLUSION WAS QUESTIONABLE STROKE, UNKNOWN AGE, AND
14 NEEDED TO FOLLOW IT UP WITH A FURTHER STUDY TO SEE WHAT HAD
15 TRANSPIRED.
16 Q. DID YOU EVER SPEAK TO ANY MEDICAL -- REMEMBER SPEAKING
17 TO ANY MEDICAL PHYSICIANS OR ANYBODY CONCERNING THIS?
18 A. WE ROUTINELY CALL THE -- THE NURSE TAKING CARE OF THE
19 PATIENT AND RELAY THE RESULTS OF THE STUDY TO HER. I DON'T
20 RECALL TALKING TO DR. WEITZEL OR ANY OTHER PHYSICIAN ABOUT
21 IT.
22 Q. AND ARE THESE -- YOUR DIAGNOSTICS HERE, THIS PAPERWORK,
23 IS THAT USUALLY INCLUDED IN THE MEDICAL RECORD?
24 A. YES.
25 Q. NOW, LET ME HAVE YOU -- I'D LIKE TO ASK YOU TO TURN
1162
1 TO -- THAT SAME EXHIBIT THAT YOU HAVE THERE, PAGE 0017. I
2 THINK IT'S A FEW PAGES BACK. AT THE BOTTOM.
3 A. OKAY. OKAY. I'M HERE.
4 Q. LET ME REFER YOUR ATTENTION TO THE BOTTOM OF THE PAGE.
5 THIS IS A - AS INDICATED HERE, THIS IS A PROGRESS NOTE OR
6 DOCTOR'S NOTE WRITTEN BY DR. WEITZEL. REFER YOUR ATTENTION
7 TO THE POINT WHERE THE LITTLE STAR IS RIGHT THERE.
8 A. OKAY.
9 Q. WHAT DOES C.V.A. STAND FOR?
10 A. CEREBROVASCULAR ACCIDENT, AN INFARCT, A STROKE.
11 Q. AND THAT'S WHAT THAT C.V.A., U.T.I. --
12 A. WELL, C.V.A. WOULD BE A STROKE; A U.T.I. IS A URINARY
13 TRACT INFECTION. IT'S SEPARATE.
14 Q. OKAY. SO HE HAS WRITTEN DOWN -- AND NORMALLY BASED ON
15 YOUR TRAINING AND EXPERIENCE AS A DOCTOR, WHEN A DOCTOR
16 WRITES A C.V.A. INTO THAT NOTE, WHAT DOES THAT MEAN?
17 A. THAT MEANS THE PATIENT HAS HAD A STROKE AT SOME TIME IN
18 THE PAST.
19 Q. OKAY.
20 A. BUT AGAIN, YOU --
21 Q. YOU DON'T KNOW.
22 A. FROM THAT I CAN'T TELL YOU WHETHER IT'S ACUTE OR OLD.
23 Q. OR ACUTE. OKAY. THEN GOING DOWN TO THE BOTTOM OF THE
24 PAGE IT TALKS ABOUT AN ADDENDUM. INDICATES ADDENDUM: SPOKE
25 WITH WIFE EXTENSIVELY. SHE FEELS STRONGLY THAT NO
1163
1 EXTRAORDINARY MEASURES SHOULD BE TAKEN TO PROLONG ENNIS'S
2 LIFE. AND THEN: GIVEN THE C.V.A. IS THAT A -- IS THAT,
3 AGAIN, THE STROKE?
4 A. YES, THAT'S THE -- C.V.A.'S A STROKE.
5 Q. AND FOUND ON M.R.I. I'M ASSUMING THAT M.R.I. IS THE
6 DOCUMENT YOU JUST TESTIFIED TO?
7 A. YES.
8 Q. BASED ON YOUR REVIEW OF THE M.R.I. AND THE IMAGING THAT
9 YOU SAW, WOULD YOU HAVE CONCLUDED THAT ENNIS HAD SUFFERED A
10 STROKE TO THE EXTENT THAT IT INDICATES HERE?
11 A. THAT WOULD NOT HAVE BEEN MY CONCLUSION. MY CONCLUSION
12 IS HE COULD HAVE POSSIBLY HAD AN ACUTE STROKE IN AN EARLY
13 PHASE, BUT I WOULD NOT CLASSIFY IT AS SOMETHING THAT WOULD
14 INDICATE THAT HE SHOULDN'T HAVE ANY TYPE OF EFFORTS TO
15 PROLONG HIS LIFE.
16 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT AT
17 THIS POINT. IT'S BEYOND THE SCOPE OF THE QUESTION. IT'S
18 BEYOND THE SCOPE OF THE EXPERTISE. IT'S ALSO AN INCOMPETENT
19 QUESTION. THE WITNESS IS LIMITED TO FACTS AND WHAT HE
20 KNOWS, NOT COMMENTING ON SOME OTHER RECORD THE WAY HE IS.
21 MR. MAJOR: YOUR HONOR, IF I MIGHT?
22 THE COURT: WELL, LET'S NOT HAVE AN ARGUMENT IN
23 FRONT OF THE JURY. JUST ASK YOUR NEXT QUESTION.
24 Q. (BY MR. MAJOR) OKAY. THAT -- BASICALLY, THE LAST
25 QUESTION I HAD FOR YOU WAS BASED ON YOUR -- WHAT YOU
1164
1 OBSERVED ON YOUR IMAGING, DID YOU SEE ANY LIFE-THREATENING
2 CONDITIONS FOR MR. ALLDREDGE?
3 MR. STIRBA: I'LL OBJECT, YOUR HONOR. FOUNDATION.
4 NOT QUALIFIED, AS A RADIOLOGIST.
5 THE COURT: SUSTAINED.
6 MR. MAJOR: YOUR HONOR, IF I MIGHT.
7 Q. (BY MR. MAJOR) ARE YOU QUALIFIED TO DETERMINE THE
8 EXTENT OF STROKES THROUGH YOUR IMAGING?
9 A. THAT'S PART OF MY TRAINING IS TO DETERMINE AND LET THE
10 DOCTOR KNOW HOW EXTENSIVE THE STROKE IS.
11 Q. AND ARE YOU TRAINED -- AND BASED ON YOUR EXPERIENCE, CAN
12 YOU LOOK AT AN IMAGING AND DETERMINE WHETHER THIS WOULD BE A
13 LIFE-THREATENING STROKE OR A MINOR STROKE OR THAT TYPE OF
14 THING?
15 A. AT THE TIME THAT WE DID THE EVALUATION OF THE STUDY,
16 YES, WE COULD DETERMINE THAT.
17 MR. MAJOR: BASED ON THAT, YOUR HONOR, I THINK HE'S
18 QUALIFIED TO ANSWER THAT QUESTION.
19 MR. STIRBA: YOUR HONOR, I WOULD STILL OBJECT.
20 FOUNDATION. HE'S NOT A NEUROLOGIST. MOREOVER, THE BEST
21 EVIDENCE OF WHAT HE DID IS IN HIS REPORT.
22 MR. MAJOR: BUT, YOUR HONOR, HE'S HERE TO
23 INTERPRET THE REPORT.
24 THE COURT: WELL, WE'RE NOT GOING TO HAVE AN
25 ARGUMENT IN FRONT OF THE JURY.
1165
1 I GUESS, LADIES AND GENTLEMEN, I'M GOING TO HAVE TO
2 HAVE -- SEND YOU OUT FOR A FEW MINUTES, SO IF YOU NEED TO
3 USE THE RESTROOM. WE'LL STILL TRY TO GET THESE OTHER TWO
4 DONE BEFORE WE GO TO LUNCH.
5 DURING THIS TIME THAT YOU'RE OUT, REMEMBER IT'S YOUR
6 DUTY NOT TO CONVERSE EITHER AMONG YOURSELVES OR TO CONVERSE
7 WITH ANYONE ELSE REGARDING THE SUBJECT OF THIS TRIAL. THAT
8 IT'S ALSO YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL
9 THE CASE IS FINALLY SUBMITTED TO YOU.
10 SO IF YOU WANT TO TAKE JUST A SHORT BREAK, THE BAILIFF
11 WILL LET YOU KNOW WHEN WE'RE READY.
12 (WHEREUPON, AT THIS TIME THE JURY LEAVES THE
13 COURTROOM.)
14 THE COURT: THE RECORD SHOULD REFLECT THAT THE JURY
15 HAS LEFT.
16 OKAY. WHAT IS THE OBJECTION?
17 MR. STIRBA: TO THE LAST QUESTION. AS I UNDERSTAND
18 THE DOCTOR'S QUALIFICATIONS, HE'S ESSENTIALLY A RADIOLOGIST.
19 AND IT SEEMS TO ME THE QUALIFICATIONS FOR DETERMINING THE
20 EXISTENCE OR INTERPRETING THE REPORT INSOFAR AS THE
21 CONCLUSION AS A RESULT OF THE EVENT IS A NEUROLOGICAL
22 CONCLUSION, AND I DIDN'T HEAR HIM TESTIFY THAT HE'S A
23 NEUROLOGIST. I HAVE -- THERE'S NO QUESTION HE OBVIOUSLY CAN
24 READ AND INTERPRET AN M.R.I. OR ANY OTHER RADIOLOGY MATTER.
25 HE CAN WRITE A REPORT ON IT. BUT I DON'T THINK IN TERMS OF
1166
1 THE TREATMENT OR THE OUTCOME OF THE EVENT THAT HE HAS THOSE
2 QUALIFICATIONS. HE DOESN'T TREAT STROKES. HE JUST READS
3 REPORTS AND DOES EXAMINATION, DOES DIAGNOSTIC TESTS. THAT'S
4 WHAT HE DOES. THAT'S MY FIRST PROBLEM.
5 THE SECOND PROBLEM IS, YOUR HONOR, WE DO HAVE THE
6 DOCUMENT IN EVIDENCE. IT IS THE BEST EVIDENCE OF WHAT IN
7 FACT HAPPENED. AND I WOULD ALSO INDICATE THAT THAT'S AN
8 OBJECTION AS WELL.
9 MR. MAJOR: IF I JUST MIGHT, YOUR HONOR, IN
10 ADDRESSING MR. STIRBA'S LAST ARGUMENT ABOUT THIS BEING THE
11 BEST EVIDENCE, THAT HAS BEEN MY ARGUMENT ALL ALONG WITH
12 THESE MEDICAL RECORDS THAT THE DEFENSE HAS INTRODUCED. I
13 MEAN, WE HAVE CONTINUALLY RAISED THIS OBJECTION WHEN THE
14 DEFENSE IS PRODUCING THESE RECORDS, HAVING DOCTORS TESTIFY
15 ABOUT RECORDS THAT HAVE BEEN PRODUCED AT NURSING HOMES AND
16 FAMILY MEMBERS TALKING ABOUT NURSING HOMES.
17 THIS DOCTOR HAS -- THIS IS HIS OWN REPORT. THIS IS A
18 REPORT THAT HE WROTE. HE HAS A RIGHT TO INTERPRET WHAT THAT
19 MEANS FOR THIS JURY.
20 THE COURT: WELL, THAT'S NOT -- HE'S NOT
21 INTERPRETING HIS REPORT. YOU'RE ASKING HIM A QUESTION
22 THAT'S NOT IN HIS REPORT.
23 MR. MAJOR: WELL, BASED ON -- BASED ON HIS REPORT.
24 BASED ON WHAT HE SAW, BASED ON HIS REVIEW OF HIS -- OF HIS
25 REPORT. AND I COULD ASK HIM MAYBE SOME FOLLOW-UP ON VOIR
1167
1 DIRE. HE HAS TESTIFIED HE'S A QUALIFIED MEDICAL DOCTOR, HE
2 DOES THESE, AND PART OF WHAT HE DOES, HE SAYS, IS HE
3 DETERMINES THE SIGNIFICANCE OF THE STROKE. HE CONSULTS WITH
4 OTHER DOCTORS CONCERNING THE SIGNIFICANCE OF THE STROKE.
5 THE COURT: OKAY. SO WHAT -- WHAT EXACTLY IS THE
6 QUESTION YOU WANT TO ASK HIM?
7 MR. MAJOR: I WANTED TO ASK HIM IF HE SAW, BASED ON
8 HIS DIAGNOSIS -- BASED ON THIS M.R.I. AND BASED ON HIS
9 INTERPRETATION OF THE M.R.I. WHETHER HE SAW ANYTHING --
10 BASED ON HIS MEDICAL EXPERTISE, HIS MEDICAL OPINION, DID HE
11 FIND ANYTHING THAT WAS LIFE-THREATENING?
12 THE COURT: OKAY. AND -- AND MR. STIRBA, SO WHAT
13 IS THE PROBLEM WITH THAT IF IT'S BASED UPON HIS BACKGROUND
14 AND EXPERIENCE AND IF IT RELATES TO WHAT HE DID?
15 MR. STIRBA: WELL, HE -- HIS BACKGROUND AND
16 EXPERIENCE AS A PHYSICIAN IS AS A RADIOLOGIST.
17 THE COURT: WELL --
18 MR. STIRBA: HE'S NOT -- HE'S NOT A NEUROLOGIST.
19 RADIOLOGISTS DO NOT TREAT STROKES. THEY DO CERTAIN
20 DIAGNOSTIC TESTS RELATIVE TO THE TREATMENT OF STROKES.
21 AND IN TERMS OF INTERPRETING HIS REPORT, TO COME TO
22 THAT CONCLUSION I'D SUGGEST THAT THERE'S NOT AN ADEQUATE
23 FOUNDATION. HE DOESN'T HAVE THE EXPERTISE TO MAKE THAT
24 DETERMINATION.
25 AND THAT'S -- THAT'S MY -- THAT'S MY POSITION, JUDGE.
1168
1 I -- I THINK TO ALLOW HIM TO INTERPRET THIS DOCUMENT TO
2 PROVIDE THAT KIND OF OPINION IS WELL BEYOND JUST LOOKING AT
3 THE WORDS OF THE DOCUMENT AND TELLING THE JURY WHAT THOSE
4 WORDS MEAN. HE CERTAINLY CAN DO THAT.
5 BUT TO GO TO RENDERING EXPERT OPINION -- SEE, I -- ONCE
6 AGAIN WE'RE BACK IN THE SAME SITUATION. I DIDN'T KNOW AND
7 I'VE NEVER GOTTEN A REPORT THAT DR. CLINGER WAS GOING TO
8 COME IN HERE AS SUPPOSEDLY A GUY WHO DID AN M.R.I. AND HE
9 WAS NOW GOING TO RENDER AN OPINION THAT WHAT HE OBSERVED ON
10 THE M.R.I. WAS NOT LIFE-THREATENING. I MEAN, I DIDN'T KNOW
11 THAT. IT'S NEVER BEEN TOLD TO ME. I DON'T HAVE ANY REPORT
12 ON IT. AND I THOUGHT HE WAS OBVIOUSLY GOING TO TESTIFY AS
13 TO HIS REPORT: WHAT HE DID, WHAT HE OBSERVED, WHAT HE SAW,
14 THAT'S FINE. I THOUGHT HE WAS GOING TO DO THAT AND HE COULD
15 INTERPRET THE WORDS ANY WAY HE WISHES.
16 BUT I NEVER THOUGHT HE WAS GOING TO GO TO THE NEXT STEP
17 OF ESSENTIALLY RENDERING EXPERT OPINION BASED UPON HIS
18 REPORT. IF I HAD KNOWN THAT THEN HE SHOULD HAVE BEEN
19 DESIGNATED AN EXPERT.
20 AND -- AND THAT IS AN ISSUE. AND IT'S -- IT'S SIMILAR
21 TO THE ISSUE THAT I GOT INTO I GUESS IN PART WITH
22 DR. DIENHART WHEN I TRIED TO ELICIT SOME INFORMATION,
23 ALTHOUGH SUMMARILY, ABOUT PNEUMONIA. I THINK THE COURT WAS
24 CONCERNED AND RIGHTFULLY SO. MAYBE THAT'S TOO FAR FOR
25 PURPOSES OF WHAT DR. DIENHART DID, AND THAT REALLY SHOULD BE
1169
1 RESERVED FOR SOME EXPERT TESTIMONY.
2 I THINK THE SAME THING IS TRUE HERE. THIS IS NOT AN
3 EXPERT. HE'S JUST A TREATING PHYSICIAN WHO CONDUCTED A
4 DIAGNOSTIC TEST. HE HAS THE RESULTS. THE RESULTS ARE WHAT
5 THEY ARE. BUT TO GO BEYOND THAT AND RENDER AN OPINION AS TO
6 WHETHER IT'S A LIFE-THREATENING EVENT IS AN EXPERT OPINION.
7 MR. MAJOR: JUST LET ME COMMENT ON THAT REAL QUICK,
8 YOUR HONOR. I KNOW WE'RE RUNNING OUT OF TIME.
9 FIRST OFF I WOULD JUST INDICATE IT'S MY RECOLLECTION
10 VERY STRONGLY THAT AT THE PRELIMINARY HEARING WE DID NOT
11 HAVE DR. DIENHART TESTIFY, BUT WE DID HAVE OTHER MEMBERS
12 BASED ON THE HEARSAY RULE TESTIFY ABOUT THIS PARTICULAR
13 DOCUMENT AND WHAT IT INDICATED.
14 THE COURT: UH-HUH.
15 MR. MAJOR: THE SECOND THING I WANT TO SAY IS
16 PERHAPS WHAT I COULD DO IS VOIR DIRE THIS DOCTOR A LITTLE
17 BIT INTO THE FACT ABOUT HIS EXPERIENCE IN DOING THIS.
18 THE COURT: WELL, I -- I DON'T THINK THE ISSUE IS
19 QUALIFICATION. THE LAST THING THAT HE RAISED WAS WHETHER OR
20 NOT THIS WAS A -- THIS PERSON WAS LISTED AS A PHYSICIAN AND
21 WE HAVE OTHER PERSONS LISTED AS EXPERTS. WE DISCUSSED THIS
22 YESTERDAY --
23 MR. MAJOR: YOUR HONOR --
24 THE COURT: -- THAT IF A PERSON IS GOING TO GIVE AN
25 EXPERT OPINION ASIDE FROM WHAT THEY TREATED --
1170
1 MR. MAJOR: RIGHT.
2 THE COURT: -- THEN IF WE'RE GOING -- IF THEY'RE
3 GOING TO DO THAT, THEY HAD TO DO THAT AND BE DESIGNATED AND
4 GIVE A REPORT TO THE OTHER SIDE.
5 MR. MAJOR: AND HE'S NOT. HE IS -- WE HAVE NO
6 OTHER EXPERTS THAT BEEN DESIGNATED TO COME IN AND TALK ABOUT
7 THIS AND WE DON'T ANTICIPATE IT. HE IS JUST SIMPLY --
8 THE COURT: WELL, WHY -- WHY ISN'T -- WELL, HE HAS
9 TESTIFIED ABOUT WHAT -- WHAT HE SAW. HE'S TESTIFIED ABOUT
10 THESE OTHER THINGS. IF HE'S NOW GOING TO GIVE AN OPINION AS
11 TO WHETHER OR NOT THIS WAS LIFE-THREATENING -- OPINION
12 VERSUS WHAT HE WAS ASKED TO DO AT THE TIME.
13 MR. MAJOR: RIGHT.
14 THE COURT: HE WAS NOT ASKED TO DO AT THE TIME AS A
15 TREATER WHETHER THIS WAS LIFE-THREATENING.
16 MR. MAJOR: BUT, YOUR HONOR, ONE OF THE THINGS THAT
17 HE TESTIFIED HE DOES, AFTER HE MAKES THIS HE GOES BACK TO
18 THE DOCTOR AND SAYS --
19 THE COURT: OKAY. BUT WE'RE CONFUSING TWO ISSUES.
20 ONE -- ONE ISSUE IS WHETHER HE COULD BE QUALIFIED TO GIVE
21 THE OPINION.
22 MR. MAJOR: RIGHT.
23 THE COURT: AND THAT'S THE ISSUE THAT YOU SAID WITH
24 THE CASE. AND THE CASE WAS YES, A PERSON MAY BE QUALIFIED
25 TO GIVE THE OPINION.
1171
1 THE OTHER ISSUE IS WE HAVE A SCHEDULING RULE -- ORDER
2 THAT SAYS, ARE PEOPLE GOING TO BE TREATING PHYSICIANS OR ARE
3 THEY GOING TO BE EXPERTS?
4 MR. MAJOR: RIGHT.
5 THE COURT: IF THEY'RE GOING TO BE EXPERTS AND GIVE
6 EXPERT OPINIONS, NOT BEING TREATING PHYSICIANS AS TO WHAT
7 THEY DID, THEN THEY HAVE TO GIVE A REPORT AND THEY HAVE TO
8 BE DESIGNATED. THAT'S -- THAT'S THE DISCUSSION WE HAD
9 YESTERDAY.
10 MR. MAJOR: PERHAPS WHAT I CAN DO IS SOLVE THE
11 PROBLEM BY ASKING A DIFFERENT QUESTION. HIS TESTIMONY IS, I
12 INTERPRET THIS DOCUMENT. I TELL THE TREATING PHYSICIAN OR
13 THE NURSE ON STAFF WHAT THE RESULTS OF THAT ARE, NOT JUST
14 SIMPLY THAT THERE WAS A STROKE.
15 THE COURT: WELL, ISN'T WHAT HE TOLD THE -- THE
16 DOCTOR IN THIS SITUATION WHAT -- WHAT IS IN THIS REPORT?
17 NOT -- NOT THE HANDWRITTEN REPORT, BUT HIS DIAGNOSTIC REPORT
18 INTERPRETING THE M.R.I.?
19 MR. MAJOR: WELL, I -- RIGHT. AND I THINK HE HAS A
20 RIGHT -- IF THE DOCTOR IS GOING TO COME IN AS PART OF THEIR
21 DEFENSE AND SAY WE BELIEVED HE HAD A STROKE, THEN THIS -- I
22 THINK THIS -- HIS TREATING PHYSICIAN -- AND HE DOES THIS
23 EVERY SINGLE DAY. AS PART OF DOING THIS HE CAN SAY, I FOUND
24 NOTHING -- MY QUESTION WOULD BE, DID YOU FIND ANYTHING THAT
25 WAS LIFE-THREATENING AND DID YOU TELL ANYBODY THAT THIS
1172
1 PATIENT SUFFERED FROM A LIFE-THREATENING CONDITION?
2 THE COURT: OKAY. SO NOW YOU JUST CHANGED IT.
3 MR. MAJOR: I'M SAYING, IF WE CAN SOLVE IT THAT
4 WAY, I'D LIKE TO SOLVE IT.
5 THE COURT: HOLD ON. WAIT A MINUTE. IT WON'T
6 SOLVE IT THAT WAY BECAUSE NOW YOU'RE ASKING A LEADING
7 QUESTION.
8 MR. MAJOR: WELL, I WOULDN'T ASK A LEADING
9 QUESTION. I'D --
10 THE COURT: WELL, THERE'S NO OTHER WAY TO ASK IT,
11 YOU KNOW, THE WAY THAT YOU'RE TRYING TO REPHRASE IT.
12 MR. MAJOR: WELL, IF I CAN SIMPLY --
13 THE COURT: WELL -- OKAY. IS -- OKAY. BUT WHAT
14 THIS DOCTOR DID IS THAT THIS DOCTOR, AS I UNDERSTAND IT,
15 NEVER GAVE A LIFE-THREATENING OPINION TO DR. WEITZEL. HE
16 GAVE WHAT HE GAVE.
17 MR. MAJOR: RIGHT.
18 THE COURT: THERE WEREN'T ANY CONVERSATIONS. WHAT
19 HE GAVE TO DR. WEITZEL IS THIS WRITTEN REPORT.
20 MR. MAJOR: IS THAT CORRECT?
21 THE WITNESS: (NODS HEAD UP AND DOWN.)
22 MR. STIRBA: IN FACT, THERE IS AN ENTRY -- IF I CAN
23 HELP THE COURT. THERE'S AN ENTRY ON 1/12 IN THE MEDICAL
24 RECORD --
25 MR. MAJOR: YOUR HONOR, JUST TO SAVE TIME, I
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1 WITHDRAW THE QUESTION. THIS IS RIDICULOUS. I -- I WITHDRAW
2 THE QUESTION.
3 THE COURT: EXCUSE ME. MR. MAJOR, I'M GOING TO
4 WARN YOU RIGHT NOW OUTSIDE THE PRESENCE OF THE JURY, THERE
5 ARE TWO THINGS THAT YOU HAVE DONE RECENTLY. ONE IS, YOU
6 KNOW, JUST THROWING UP YOUR HANDS AND SAYING THIS IS
7 RIDICULOUS THEN, BASICALLY, IS REFLECTING UPON WHAT I'M
8 DOING. AND THAT IS ABSOLUTELY INAPPROPRIATE.
9 MR. MAJOR: I UNDERSTAND, YOUR HONOR, AND I
10 APOLOGIZE.
11 THE COURT: OKAY.
12 MR. MAJOR: WE WITHDRAW THE QUESTION AND WE HAVE NO
13 FURTHER QUESTIONS OF THIS WITNESS.
14 THE COURT: OKAY. LET'S HAVE THE JURY COME BACK
15 IN.