1 1 supreme court of the state of new...

1

1 SUPREME COURT OF THE STATE OF NEW YORK

2 COUNTY OF KINGS: CIVIL TERM - PART 66

3 --------------------------------------x

4 EDUARD VODOFF :Index No. Plaintiff ,

5 - AGAINST - :18898-10

6 TAHIR MEHMOOD and ROBOT TAXI CAB :JURY TRIAL

7 Defendant (s) :TESTIMONY

8 :DR. KATZ

9 --------------------------------------x 360 ADAMS STREET

10 BROOKLYN, NEW YORK 11201

11 OCTOBER 31, 2013

12

13 B E F O R E: HONORABLE RICHARD VELASQUEZ JUSTICE,

14

15 A P P E A R A N C E S:

16 ATTORNEY FOR THE PLAINTIFF

17 112 MADISON AVENUE NEW YORK, N.Y.

18 212-683-3800

19 BY: GEORGE PFLUGER, ESQ.

20 ATTORNEY FOR THE DEFENDANT

21 PICCIANO & SCAHILL 900 MERCHANTS CONCOURSE, STE, 310

22 WESTBURY, NEW YORK 11590

23 BY: FRANCIS J. SCAHILL, ESQ. 516- 279-5110

24 516-721-3395

25 SUSAN OLIVA, CSR. SENIOR COURT REPORTER

Direct - Dr. Katz - Pfluger

2

1 COURT OFFICER: All rise. Jury

2 entering.

3 (Whereupon, the jury enters the

4 courtroom.)

5 THE COURT: Jurors, you may be seated.

6 We will continue with the presentation

7 of the plaintiff's case.

8 Plaintiff, call your next witness.

9 MR. PFLUGER: Plaintiff calls Dr. Katz.

10 (Whereupon, the witness takes the

11 witness stand.)

12 D R. V I C T O R K A T Z, a witness on behalf of

13 the plaintiff, having been first duly sworn, testified as

14 follows:

15 THE CLERK: State your full name for

16 the record.

17 THE WITNESS: My name is Victor Katz,

18 3632 Nostrand Avenue, Third Floor, Brooklyn, New York

19 11229.

20 DIRECT EXAMINATION

21 BY MR. PFLUGER:

22 Q We met for the first time today?

23 A Correct.

24 Q How many times have you testified?

25 A This year, I think once.


3

1 Q How many times in total?

2 A Maybe four.

3 Q How long have you been or tell us who you are

4 and what you do for a living?

5 A I am an orthopedic spine surgeon. I am board

6 certified in spine surgery. I do 70 percent spine surgery

7 and 30 percent sports medicine for the shoulders and

8 knees. I do arthroscopies.

9 Q Where did you go to medical school?

10 A I went to a seven-year medical program at Sophie

11 Davis School of Biomedical Education, and I graduated in

12 1989 with an M.D. from Stony Brook, a State University

13 Medical School, and I did two residencies for Physical

14 Medicine and Rehabilitation.

15 I finished and got a board certification.

16 The second residency that I did was in

17 orthopedic surgery. I did an internship in general

18 surgery at Cabrini Hospital in Manhattan, and I did my

19 residency at Catholic Medical Symptoms in Brooklyn and am

20 associated with St. Vincent's Medical Center in Manhattan.

21 I graduated in 2001, and I went to California and did a

22 fellowship in spine surgery at Seton Medical Center. And

23 I got board certification in 2002 in orthopedic surgery.

24 Q And?

25 A I received my board certification from


4

1 orthopedic surgery in 2002. I have been in practice for

2 eleven years.

3 Q Are you board certified in spine surgery?

4 A In orthopedics, you can take your boards as a

5 spine surgeon or general orthopedist. I took it as a

6 spine surgeon. I am also board certified in physical

7 medicine and rehabilitation.

8 Q Where are you affiliated to practice?

9 A I have three locations, three offices, and am

10 affiliated at multiple hospitals. Winthrop Hospital;

11 Mercy Medical Center; South Nassau Medical; at Lenox Hill;

12 and there are two in Brooklyn, Beth Israel and Community

13 Medical Center.

14 Q You have admitting practices at those

15 facilities?

16 A Yes, but I have been focusing mainly at Mercy,

17 Winthrop and Community Medical Center in Brooklyn.

18 Q Did there come a time that Mr. Vodoff came under

19 your care?

20 A Yes, sir. He came to me the first time on

21 June 18, 2010. And he came to me complaining of neck

22 pain, radiation down his right arm, associated numbness

23 and tingling in his hand.

24 The history that he gave me was that he was

25 a 54-year-old gentlemen involved in a motor vehicle


5

1 accident and April 7, 2010, the accident occurred when he

2 was rear-ended, and he stated that he may have lost

3 consciousness for a few seconds or minutes. He did not

4 remember. He did not go to the hospital. But the next

5 day, he developed neck pain shooting down the arms

6 associated with numbness and tingling in the right hand

7 primarily.

8 He went to his primary care physician or

9 doctor that he went to and was started on physical

10 therapy. He has been undergoing therapy for the past

11 several months. And because of persistent neck pain, an

12 MRI was ordered, and the MRI demonstrated large

13 paracentral disc herniation, C5-6 radiculopathy, cord

14 compression and foraminal stenosis.

15 He went to see me for orthopedic

16 consultation. Denied prior history of neck pain or arm

17 pain before this accident.

18 His past medical history was only

19 significant for heart disease and no surgical history.

20 Not taking medications. No allergies at the time. Right

21 before the accident, he was working as a concierge full

22 duty. He lives with his family, one child, and he does

23 not smoke or drink.

24 On physical exam he was 180 centimeters

25 tall; weight, 210 pounds. Examination of the neck,


6

1 tenderness, palpation, para-spinal muscle spasms and range

2 of motion was limited. Extension was 20 degrees. Normal

3 60 degrees. Flexion was 20 degrees. Normal 60 degrees.

4 Rotation to the right, 50 degrees. Normal 80 degrees.

5 Rotation to the left 60 degrees. Normal 80 degrees. He

6 had a positive Spurling test on the right, negative on the

7 left.

8 The rest of the neurological examination

9 revealed weak grip strength on the right, four out of

10 five. Subjective numbness of the right hand mainly four

11 and five digits. Pulses plus 2.

12 Q Now, Doctor, can you tell us what is a

13 clinician?

14 A A clinician is a doctor, a physician.

15 Q What does that mean to people who do not know

16 what that means? You read signs and symptoms and

17 complaints.

18 How does that affect your ability to

19 formulate an impression?

20 A I think, how do we arrive at a diagnosis?

21 We examine patients and talk to patients.

22 90 percent of the diagnosis comes from history, physical

23 exam and testing like an MRI or lab testing or x-rays.

24 Maybe five to ten percent but most comes from the history.

25 Q But the physical examination typically is done


7

1 for what purpose?

2 A It's to confirm a suspicion of a diagnosis. If

3 someone complains of certain symptoms, it's to prove or

4 disprove a diagnosis and you do an exam and you focus the

5 exam on those body parts that the patient is complaining

6 of.

7 Q Did you review -- you started to examine the

8 plaintiff by taking down his complaints.

9 Did you review films?

10 A That was the next thing. An MRI film. When I

11 see patients I don't go by reports. I like to get actual

12 films. I look at the images and decide if they are

13 surgical candidates.

14 Patient had an MRI done on April 20, 2010

15 which I have right here, demonstrating a large para

16 central disc herniation at C5-6 causing central stenosis

17 or compression of the spinal cord, and also a foraminal

18 stenosis compressing nerve roots on the right side.

19 Q What does that mean?

20 A That means that he had -- a disc is made up of

21 bones called vertebrae separated by discs. They are soft

22 tissue and structures that allow the spine to move, to

23 bend, to twist and so forth.

24 So the spine is actually a structure that

25 has two functions. It has a function of supporting your


8

1 whole body and, at the same time, allows you to move, to

2 rotate, and to bend which are opposite when you think,

3 opposite in function.

4 One gives you strength and the other gives

5 you mobility. It's opposing functions at the same time

6 which is, from an engineering point of view, a complicated

7 thing to do both at the same time. So when you -- the

8 function of a disc is to allow that motion to be able to

9 bend, twist, rotate and also to compress all at the same

10 time.

11 The discs are composed of two structures.

12 The annulus is an outer rim and a jelly soft structure

13 outside of this.

14 At times of stress or an injury, the outer

15 lining can get torn or injured and the inner substance, we

16 push out through the outer lining. It's like when you

17 have a tire and get a bubble in the tire.

18 You have an out bulging of the disc. If it

19 tears the inner tubes, it's like old tires that pop out.

20 In that case it's an extrusion of the nucleus material.

21 This patient had a asymmetrical herniation on the right

22 side which was causing a compression of the neuro

23 structures in the canal and on the way out to the nerves

24 which go to the arm.

25 Q What is focal herniation or central herniation?


9

1 A It means in one location in a disc. One side.

2 It does not mean anything more than that.

3 Q Is a focal herniated disc indicative of a

4 traumatic injury?

5 A I thought this herniation in this case was

6 acute -- was new. It was not there, let's say, a year or

7 two ago.

8 Because what this patient told me before

9 this accident, he did not have pain in his neck or down

10 his arm and he was working full duty doing his work duties

11 as a concierge, lifting heavy objects, lifting suitcases,

12 everything a concierge does.

13 Pain started right after the accident.

14 Q I want you to assume Mr. Vodoff told us that

15 prior to April of 2010, he had never seen a doctor for any

16 problems with his neck, never seen a doctor for his

17 shoulder or elbow.

18 And that prior to April 7, 2010, he would

19 go skiing, lifted weights, and I want you to assume we

20 just had records this morning that indicated that he

21 lifted weights and he was in good shape.

22 Does that have any significance in

23 formulating an opinion as to the cause of that focal

24 herniation that was found?

25 A Yes, of course.


10

1 Q How so?

2 A Well, like I said, a lot of our diagnoses

3 clinically are made based on what the patient tells us in

4 addition to our exam and all other tests.

5 So he told me he, prior to the accident, he

6 had no neck pain, no numbness in his hand, no weakness and

7 was able to perform duties as a concierge.

8 Based on that and the fact that right after

9 the accident, he developed all of this pain, plus an MRI

10 that basically correlated with the symptoms. My opinion

11 was that the accident caused this herniation.

12 Q And what was the plan after you saw him at that

13 first visit, June 18, 2010?

14 A I felt so strongly that this patient had acute

15 neurological symptoms weakness, numbness and terrible

16 pain.

17 In fact, the pain at that time, I have a

18 note that he, himself, filled out with his own handwriting

19 putting his pain at a level of a eight out of ten.

20 That's significant. Plus with the

21 neurological deficits, I thought that he would be a good

22 candidate for surgery. That's what I recommended.

23 Q What did you bring with you today?

24 A I brought my chart and the MRI films.

25 MR. PFLUGER: I would like to mark this


11

1 and offer this in evidence.

2 MR. SCAHILL: And the films?

3 THE COURT: Do you have those here?

4 MR. PFLUGER: We will have to mark

5 those separately.

6 Q Do you have your April 20 MRI film?

7 A Yes, I do.

8 Q This is the herniation right here.

9 (Indicating.)

10 You see these are the bodies I talked

11 about, and these white structures are the discs. These

12 discs are normal. Why are they normal is because they are

13 in line with the bones. Because they are in line with the

14 bones, they don't push into the canal.

15 So, basically, these discs are all normal.

16 They are all in line with the bones. These are the bones,

17 the vertebral bodies and these are the discs. They don't

18 push out into the canal. The spinal cord is right in the

19 middle. This is the outline of the spinal cord. This is

20 the brain, and this is the neck.

21 So, basically, from here on, you see the

22 herniation. It starts here. And it pushes into the

23 canal. You can see it again here. It's significant as

24 compared to these guys. You see that and that's what we

25 call a herniated disc. (Indicating.)


12

1 Now, this --

2 THE COURT: Take your time. You are

3 not facing the court reporter when showing them the

4 films.

5 A Okay. He also has some arthritis in the neck.

6 After age 30 or 40, we develop changes called arthritic

7 changes of the spine. He have what we call osteophytes.

8 Those are bones at the edge of the spine. These are not

9 trauma related. These are part of the natural aging

10 process.

11 The older you are, the more you are likely

12 to have that. You look at 20-year-olds, 30-year-olds and

13 60-year-olds. The older you are, the more most likely you

14 are to have osteophytes. Like a 20-year-old will have 20

15 percent changes. A 60-year-old has 80 to 90 percentage

16 changes.

17 These are not trauma related.

18 In this case, he had what was superimposed

19 of a herniated disc right here. (Indicating.)

20 Q Because we had a box here, I will show you what

21 is a post-surgery X-ray.

22 A Yes.

23 Q Are there any other films that you want to talk

24 about?

25 A This is the one that shows it the best. I have


13

1 an axillary view. It's a cross section. The herniation

2 is right here.

3 Q Show us a non herniated area if you can?

4 A The other one is better but because these cuts

5 where sometimes they do it close together. Sometimes they

6 do only one per level. It's not as obvious on this.

7 Q What number is that?

8 A It's No. 10 and No. 9, I think.

9 Q Show us where that herniation is?

10 A On the sagittal view, they go from -- I am

11 looking for the number. It's four and five. This is

12 where it's most obvious showing the herniation on the

13 sagittal view.

14 Q June 30, we have the record where you performed

15 a surgery?

16 A Yes, sir. And I can tell you what the surgery

17 entails actually.

18 Q We will do that in a minute. Show us the post

19 surgical views?

20 A Basically, what we did -- this surgery is the

21 anterior approach as you go through the front of the neck.

22 You make an incision in one of the creases. You spread

23 everything apart. There are vascular structures. Here is

24 the trachea, and there are the large vessels to the other

25 side and you go down to the spine. I remove the whole


14

1 disc completely and use a microscope to remove the PLL,

2 posterior longitudinal ligament until I see the dura. I

3 decompress all of the way through the spinal cord and go

4 through the sides and decompress the foramen.

5 Once I do all of that, I take a piece of

6 bone from the hip and put it into a cage and put the cage

7 in between the disc spaces.

8 Q Why do you do that?

9 A If I just remove the discs, the spine could

10 collapse. And if he would, his neck would bend forward

11 and that would cause the cord to drape over the spine and

12 actually make a stretching effect. It would cause a

13 compression.

14 At the same time, the foramen could

15 collapse and cause compression of the nerve at the point

16 to where the nerves come out. So this is where --

17 Q Well, tell us about the disc spaces?

18 A Then I put a plate here. It's a metal plate

19 that holds it in place when it heals.

20 Q Is that still in his neck?

21 A Yes.

22 Q Is that something that's going to be there for a

23 long time?

24 A Yes. Correct.

25 Q How long are the discs spaces?


15

1 A Well, he has like I said osteophyte changes at

2 the level above. These guys there. You see that piece

3 that goes into the canal. More so, on the -- at the other

4 levels. This is age-related and not trauma-related.

5 At that level he did not have compressions

6 so I left it alone.

7 Q What was trauma related?

8 A The herniation.

9 Q Do you have any other films?

10 A That's it.

11 Q Sir, that surgery, it's a silly question. He's

12 not as good as new, is he?

13 A Of course not.

14 Q Why?

15 A First of all, there is compression. Compression

16 of the nerves. It stiffens the spine a little bit. He

17 lost some range of motion. It's only one level but it

18 accounts to 10 to 15 percent of total range of motion of

19 the neck.

20 What do I mean? His ability in bending,

21 extending or rotating.

22 He lost 10 percent of the motion. If it

23 was at two levels, you would lose 20 to 30 percent in

24 range.

25 Q Do you have a reasonable degree of medical


16

1 probability that that limitation of his neck is permanent?

2 A Yes.

3 Q What is your opinion?

4 A That it's permanent.

5 Q These are lawyer questions that we have to ask.

6 What was the next time you saw him? Was it

7 June 18, 2010 when you next saw him?

8 A I will tell you exactly. The next time I saw

9 him was in the operating room.

10 Q And was there a discussion with Mr. Vodoff about

11 the surgery before you did the surgery?

12 A Of course. I always discuss risks and benefits,

13 and complications. I usually show a video. I don't

14 remember if I showed it to him but I have a website and he

15 can watch the surgery. It's an animation and not a real

16 surgery but it shows what I do in these types of cases.

17 Q The worst case scenario is paraplegia as a risk

18 of surgery?

19 MR. SCAHILL: Objection.

20 THE COURT: Sustained.

21 Q Tell us what is the worst case scenario if

22 surgery of this type goes bad?

23 MR. SCAHILL: Objection, your Honor.

24 THE COURT: I will allow it.

25 A Well, the risks involved in the surgery include


17

1 infection, bleeding, and you can have nerve damage. You

2 can be paralyzed and the worst case scenario is death.

3 It's very rare. It's less than 10 percent.

4 Q Did you discuss those risks with him?

5 A Yes, that's my protocol before any surgery.

6 Q Where was the surgery performed?

7 A Mercy Medical Center.

8 Q What you told us about the MRI that you had, did

9 you use that MRI prior to surgery, the 4-20-10 MRI that we

10 just looked at?

11 A Without that MRI, I would not be -- I would not

12 be able to do the surgery. You have to have the MRI in

13 the room at the time of surgery.

14 Q Why?

15 A Many reasons. To make sure that you have proper

16 indications for surgery and to make sure you are at the

17 proper levels.

18 And it's very unusual but one of the worse

19 errors, medical errors, if you are operating at the wrong

20 level, to prevent that, you have to have all of the films

21 at the time of surgery especially for the spine.

22 Q Do you have the operative report?

23 A Yes, I do.

24 Q What was your pre-operative diagnosis? Don't go

25 quickly because the court reporter had a long day already.


18

1 A As I said previously, the pre-operative

2 diagnosis was acute herniated disc at C5-6, cervical

3 radiculopathy with neurological deficits and cervicalgia.

4 It's a Latin word meaning neck pain. Neck pain and

5 radicular symptoms which means pain down the arm which

6 were caused by nerve compression and weakness in his hands

7 and numbness in his hand.

8 Q When you note mild neurological deficit, what

9 does that mean?

10 A He had weakness and numbness in his hand.

11 Q The surgery that you performed, tell us what it

12 was?

13 A Anterior cervical discectomy and instrumented

14 fusion at the C5-6 level as well as peek cage. It's what

15 you saw on the X-ray.

16 And to restate what I did, I made an

17 incision in front of the neck and went through a crease,

18 and I dissected to what we call a layer covering the neck,

19 a muscular layer with a vertical incision spreading

20 anything apart avoiding the nerves and muscles, and until

21 I get down to the spine.

22 And then at the level of the spine, I use a

23 microscope, and under a microscope I do an incision in the

24 disc where I remove the whole disc using different types

25 of instruments. And, also, I resected what we call the


19

1 posterior longitudinal ligament, the last ligament before

2 the dura, the outer covering of the cord. That keeps

3 everything in place, and I decompress to pressure off the

4 nerve coming out in the foramen to make sure that the

5 symptoms in the arm go away.

6 Q Can a focal herniation like he had occur without

7 a fracture of the bone structure?

8 A Yes.

9 Q How so?

10 A It's two different structures.

11 Most people have failure of the outer rim

12 of the disc without a bony or without fracture.

13 Fracture means you have an actual breakdown

14 of the bone. You don't have to have a fracture to have a

15 disc fail. In fact, usually you don't.

16 Q How many of these surgeries have you done in

17 your professional career?

18 A In my profession, I do 150 to 200 spinal

19 surgeries a year, and about half of them are to the neck.

20 So ten multiplied by ten years is over 1000 or rather 500.

21 I'm sorry. No rather 1000.

22 Q You are not a mathematician. You are a doctor.

23 So that's okay. After the surgery, strike that.

24 Did you see him at Mercy Hospital?

25 A Of course.


20

1 Q After the surgery?

2 A Yes.

3 Q What, if anything, was he prescribed when he was

4 discharged the following day?

5 A Well, I prescribe -- he goes home with a

6 cervical collar and I give him pain medication.

7 Q What type of pain medication?

8 A Percocet or a derivative.

9 Q I want you to assume that he told us that he

10 still takes pain medications as of this day. Pain

11 medications is a silly question which is prescribed for

12 patients undergoing this type of surgery. So can you tell

13 us for what reason?

14 A Well, it's a painful procedure. You need it the

15 first two months. And, after that, you need it on

16 occasion when you have exacerbations.

17 When you have this type of surgery, you're

18 never 100 percent afterwards. You are never going to be

19 100 percent pain free. You are going to have -- it's not

20 going to be as bad as before the surgery. He will have

21 good days and he will have bad days. From time to time

22 you may require pain medications to control the pain. It

23 like waxes and wanes.

24 Q And the next time you saw him was July 2, 2010?

25 A July 2, 2010. Yes.


21

1 Q What were the findings?

2 A Well, he had his usual post-operative visit.

3 His incisions looked okay. I examined the incisions and

4 sent him home.

5 Q What's the next time he came to see you?

6 A The next time he came to see me was July 9, a

7 week later approximately.

8 At that time, neck incisions looked good

9 but his hip incision where I took the bone started to look

10 red and swollen, and it gave him trouble. It gave him

11 pain.

12 At that point, I tried or started him on

13 antibiotics because I felt there was an infection and told

14 him to come back in a week or two to see how it was

15 working.

16 I told him if it did not work, I may have

17 to have taken him back to the operating room to clean it

18 out basically and to do an incision and drainage.

19 Q That was one of the potential risks? Infection

20 from the surgery?

21 A Correct.

22 Q When did you see him next?

23 A I saw him on July 16.

24 Q Were there any complaints?

25 A Well, his neck was still hurting him which is


22

1 normal after surgery. His hip was not looking so good.

2 At that time, I prescribed for him wet to

3 dry dressing changes.

4 Q What was your impression?

5 A My impression was that he was status-post neck

6 surgery. He developed a cellulitis or skin infection of

7 the hip wound. And that was mainly my impression.

8 He was developing a worsening of the hip

9 wound and, eventually, he ended up going to the operating

10 room on August 9th. I did an incision and a debridement

11 of the wound and a secondary closure.

12 I had to excise and go back through his

13 incision and excise everything infected and do

14 re-approximate the skin back and do a secondary closure.

15 Q You did see him August 6 before you did the

16 surgery?

17 A Yes.

18 Q What were the complaints?

19 A At that point the wound was draining. It was

20 not healing, and he developed symptoms that he didn't have

21 before. And that's when I made a decision to take him

22 back to the hospital and perform a procedure.

23 Q That was open debridement?

24 A Yes.

25 Q That's what you just told us about?


23

1 A Yes.

2 Q Did you see him once again on August 13th, 2010?

3 A Yes, I saw him a week later for a post-operative

4 visit. And, at that time, the wound looked better. That

5 procedure did the trick, and I removed all infected tissue

6 and he started to heal normally.

7 Q What was the next time you saw him?

8 A I just want to mention that in the last three

9 years, this was my only infection, and I think that one of

10 the reasons I think that it got infected was because I

11 remember him telling me he had gotten a call from his boss

12 to go back to work three days after his procedure.

13 He went back to work one day. And maybe

14 one or two days, and which involves sitting as a concierge

15 with his usual duties and I discouraged him. I tell

16 people after this type of surgery, you have to be out of

17 work especially if they are doing physical work for at

18 least six months to a year. He didn't tell me about this.

19 If he told me about this, I would have told

20 him not to go. This is a contraindication. Especially

21 the first two weeks. This guy is a very conscientious guy

22 and he was from day one when I operated on him.

23 And so -- what was the question?

24 Q Before we continue, counselors, please approach.

25 (Whereupon, an off-the-record


24

1 discussion was held at the bench

2 between court and counsel.)

3 Q August 23, 2010, what complaints was he making?

4 A He came back for a post-operative visit, and he

5 was -- his incision at that point, he underwent drainage.

6 Two weeks ago, he was complaining of right shoulder

7 stiffness.

8 Q What were the findings on physical examination?

9 A Let me explain why all of the sudden he started

10 to complain of the right shoulder not mentioned in the

11 first note.

12 When he first came to me, and I have

13 documented in the form that he fills out, that he, prior

14 to seeing me, he saw Dr. Senat, a general orthopedist who

15 he came to see for his shoulder problem.

16 He came to me, and I focused on his neck

17 because I assumed Dr. Senat was going to take care of the

18 shoulder.

19 But that day when he came to see me, he

20 said he wanted me to take over the management of the

21 shoulder. He wanted me to do it and not Dr. Senat.

22 I started addressing that as a second

23 problem for him at that time. That's why it was not in my

24 notes before. But it came up at this point when he got

25 over the neck surgery and complication of the neck


25

1 surgery, and he started to complain of shoulder pain.

2 He complained that he was having stiffness

3 and pain. So he was getting worse with stiffness and

4 pain.

5 On exam, he had a healed incision on his

6 hip from the previous debridement. No evidence of edema,

7 and examination of the right shoulder redeveloped with

8 forward flexion 0 to 140 degrees. Normal is 0 to

9 180 degrees.

10 He had positive impingement, positive

11 Hawkins, cross arm abduction tests and tenderness of the

12 A.C. joint, and internal rotation was limited due to pain.

13 Q What is adhesive capsulitis of the right

14 shoulder?

15 A I felt he was developing that. Adhesive

16 capsulitis. It's a diagnosis that involves when you have

17 an injury, especially to a shoulder. First, he had

18 inflammation. You can turn to inflammation of scar

19 tissue. That blocks your motion inside of the shoulder.

20 Q I want you to assume that on April 12, he went

21 to Recover Medical and made complaints of shoulder pain.

22 That's as a result of the accident?

23 A He had this complaint all along. I didn't

24 mention it in my note because I left it up to Dr. Senat

25 who he was seeing at the same time as a specialist for the


26

1 shoulder. I thought he would take care of the shoulder.

2 When he came back to me after my neck

3 surgery, he was happy with my work and he had wanted me to

4 take over the case.

5 Q I want you to assume early on after the accident

6 that in April, he had full range of motion but had

7 complaints of pain.

8 What significance does that have when you

9 saw him on August 23, 2010, that now, there is a

10 limitation in motion?

11 A Like I said, the way this could be explained is

12 that he, as time went on, again, I don't know what therapy

13 he underwent for the shoulder. But if he was not

14 undergoing therapy, it was inadequate and he could have

15 gotten increasing scar tissue that could result in

16 limitation of motion of the shoulder due to scar tissue

17 formation.

18 Q Was surgery performed?

19 A Yes.

20 Q By the way, did you form an opinion within a

21 reasonable degree of medical probability that adhesive

22 capsulitis was caused by that accident of April 12?

23 A Yes.

24 Q What is your opinion?

25 A My opinion is that it was causally related and


27

1 the reason that I state that is because, once again,

2 patient denied to me on further questioning that he had

3 any problems with his neck or shoulder before this

4 accident happened.

5 And he was again working full duty, and he

6 was able to perform all of his obligations without any

7 pain prior to this accident.

8 Q I want you to assume there was no medical

9 records from this courtroom or anywhere that indicated

10 that he had any prior complaints or treatment for right

11 shoulder problems, neck problems or ulnar problems.

12 And I want you to assume that as a

13 clinician and surgeon and spine and orthopedic surgeon,

14 would that aide you in formulating an opinion that the

15 accident was the reason for this adhesive capsulitis?

16 A Yes.

17 Q The surgery that you performed was what?

18 A The surgery I performed -- let me just mention,

19 I also reviewed an MRI for the shoulder.

20 Before the surgery, the MRI of the right

21 shoulder dated May 26, 2010, and it says, evidence of

22 tendinosis or tendinopathy of the right shoulder

23 characterized by heterogenous signal in the supraspinatus

24 tendon and also had a acromial impingement and joint

25 effusion.


28

1 Q Was that something that developed as a result of

2 that and within a reasonable degree of medical probability

3 that those finding were consistent with the April 7, 2010

4 accident?

5 A In my opinion, yes.

6 Q You did perform the surgery?

7 A Yes.

8 Q And what was your finding, diagnosis, final

9 diagnosis?

10 A So the final diagnosis is that the patient had

11 right shoulder impingement, bursitis, synovitis and right

12 shoulder pain.

13 Q Do you have an opinion whether or not that

14 injury and resulting surgery was permanent in his ability

15 to use his arm?

16 A Ability to use his arm.

17 MR. SCAHILL: Objection as to form.


19 Q Do you have an opinion within a reasonable

20 degree of medical probability that that affected his

21 ability to use his arm and right shoulder?

22 A Before surgery, you mean?

23 Q After the surgery. Is he 100 percent?

24 A He is not 100 percent but he is much more

25 improved than before his surgery.


29

1 Q Did you do a range of motion test of the

2 shoulder?

3 A Yes.

4 Q What was the finding?

5 A Before or after?

6 Q After?

7 A Well, I was examining him all along and after

8 the surgery. The surgery was done on --

9 Q October 25, 2010?

10 A Yes. October 25, 2010. Subsequently, I saw him

11 on November 8, 2010. Status post right shoulder

12 arthroscopy.

13 He had decompression, and I noticed at the

14 time of surgery, he had a spur formation causing

15 impingement. The spur was formed by the joint between the

16 clavicle and acromion. And I resected the bone, the spur,

17 and I also removed scar tissue that was present in that

18 space constricting his motion.

19 And, at the time of the first initial

20 visit, range of motion was forward flexion 0 to

21 120 degrees, external, normal, 180 degrees. External

22 rotation 30 degrees. Normal 90 degrees. Internal

23 rotation also 30 degrees and normal is 90 degrees.

24 And this was the first post-operative

25 visit. I took out the sutures and sent him for aggressive


30

1 physical therapy.

2 Q When did you next see him?

3 A The next time I saw him was on October 22,

4 roughly one month after the procedure.

5 And he was slowly improving. Range of

6 motion improved to forward flexion 0 to 140 degrees, again

7 normal 180. And internal and external rotation remained

8 the same.

9 THE COURT: Did you see him again on

10 October 22?

11 A I'm sorry. November 22. I apologize.

12 Q You saw him on multiple visits.

13 A Yes.

14 Q You saw him March 29, 2013?

15 A Yes.

16 Q You examined his neck?

17 A March. March 29. I have March 21, 2011.

18 Q What were the findings with reference to his

19 neck?

20 A At that time, he had a healed incision. Both

21 his neck and hip and shoulder, and there is no erythema

22 and in duration, minimum scaring and range of motion of

23 the neck was as follows: Extension, 20 degrees. Normal

24 30 degrees. Flexion, 40 degrees. Normal 60 degrees.

25 Rotation improved to 70 degrees. And normal is


31

1 90 degrees.

2 At that time, he had negative Spurlings and

3 negative Hoffman tests. He had tenderness on palpation

4 and some spasms. Neurological examination revealed motor

5 strengths, five out of five in all muscle groups.

6 Sensation intact to pin trick and reflexes were plus one.

7 Q As of that date, March 2013, do you have an

8 opinion with a reasonable degree of medical probability

9 that about the limitations that you told the jury about

10 are permanent?

11 A Yes.

12 Q How about his shoulder?

13 Did you do a range of motion exam on his

14 shoulder?

15 A That date? No.

16 Q Before that?

17 A Yes.

18 Q On January 10, 2011 roughly three months after

19 his shoulder surgery, the exam was as follows:

20 Forward flexion improved 0 to 150 forward

21 flexion. Normal 0 to 180. Negative impingement, negative

22 Hawkins, internal rotation limited still three months

23 after.

24 And given that finding, would a patient

25 typically get back to 100 percent range of motion?


32

1 A Typically? No.

2 Q Did you formulate an opinion as to findings that

3 you just told the jury with reference to the limitation of

4 motion as permanent in nature?

5 A Yes, they are permanent in nature.

6 Q Did you formulate an opinion that the -- once

7 again, that the accident of April 7, 2012, was the

8 competent and producing cause of his limitations from his

9 subsequent injury and surgery?

10 A Yes.

11 Q What is it?

12 A Like I said before, I thought both of these were

13 related to that accident. Causally related.

14 Q Now a double crush injury, what is that?

15 A There is a concept in medicine called that. If

16 you take a hose of water and open the water, and step

17 close to where the hose is connected to it, it will

18 decrease the flow through the house. It's going to make

19 it easier to compress it further down the road. It's not

20 as rigid because it flows less. Same thing happens with

21 nerves. If you compress a nerve in the neck to

22 50 percent, that nerve is going to be more likely to get

23 compressed or it's easier to get compressed down the road.

24 If someone has a herniated disc in the

25 neck, and it's compressing the nerve, those people are


33

1 more likely to get carpal tunnel syndrome or compression

2 in the wrists and elbow and with their shoulder, they are

3 predisposed to it.

4 This happens in 20 percent of patients.

5 Q In March of 2011, you performed a left elbow

6 ulnar nerve entrapment transposition?

7 A Yes, I did.

8 Q At New York Community Hospital?

9 A Yes.

10 Q Why?

11 A Patient complains of persistent pain of the

12 fourth and fifth finger of the left hand which was not

13 related to the herniation on the opposite side.

14 But, I felt that this was caused by an

15 ulnar nerve compression of the elbow. I sent him for EMG

16 or nerve tests which was done by Dr. Elsoury which

17 confirmed a diagnosis.

18 Q March 16, 2011?

19 A Yes, I think so. Based on that EMG, I offered

20 him this procedure called decompression of the nerve or

21 ulnar nerve transposition. I did this at Community

22 Hospital.

23 Q How does the ulnar entrapment have anything to

24 do with the accident?

25 A Well, just to explain. Herniations, although


34

1 primarily on the right side, some of it was in the central

2 position, especially in the middle of the condyle. So

3 that would constitute that compression at that level

4 predisposing him to developing a compression at the wrist

5 or of the elbow.

6 Q Have you formulated an opinion within a

7 reasonable degree of medical probability that the accident

8 of April 7, 2010 was the competent and producing cause of

9 that ulnar nerve injury?

10 A Based on what the patient told me that he didn't

11 have any symptoms before the accident, I felt that that

12 was causally related to all of these things. To the neck

13 surgery and neck herniation and disc herniation of the

14 neck and shoulder problem and that he later on developed a

15 ulnar nerve compression.

16 Q I want you to assume he told us that he never

17 injured his neck, shoulder or elbow after the accident.

18 Does that have any significance to you?

19 A Repeat the question.

20 Q I want you to assume Mr. Vodoff told us that he

21 never reinjured his neck or shoulder or elbow after the

22 accident.

23 Did that have any significance to you in

24 formulating an opinion that the accident was the competent

25 and producing cause before he had nothing and after he


35

1 didn't reinjure anything?

2 Does that assist you in formulating an

3 opinion that the accident was the competent and producing

4 cause of the injuries?

5 A In my opinion, I thought that the accident was

6 causally related to all of this.

7 Q I just want you to assume when Mr. Vodoff was

8 stopped in traffic, waiting to get off on the BQE, that he

9 was struck from behind and described this as a heavy

10 impact, and that Mr. Mehmood testified that it was ten to

11 15 miles per hour.

12 Does that have any significance to you in

13 formulating an opinion that the injuries he told us about

14 were caused by that impact?

15 MR. SCAHILL: Objection, your Honor.


17 Rephrase.

18 Q I want you to assume Mr. Vodoff told us that he

19 said that he was driving about 10 to 15 miles per hour

20 when he hit a stopped vehicle driven by Mr. Vodoff, and

21 that Mr. Mehmood was driving a van, and that Mr. Vodoff

22 was in a Lexus.

23 Does that have any significance to you in

24 formulating an opinion that the accident was the competent

25 and producing cause of the injury?


36



3 A I am not a -- how do you say. Collision expert.

4 I am a doctor. I don't know what speed he was going. To

5 me, it's irrelevant. To me, what the patient tells me

6 before, and that is that he had no pain, and that this

7 pain started after the accident; whether or not he was

8 going 15 or 50 miles per hour, it does not -- it's not

9 relevant to me because I was not there. He could be

10 telling the truth. I was not there. I don't know.

11 And, certainly, in someone older and who

12 has a spine that's not normal and who has osteophytes that

13 have formed there, and someone that does not move as

14 someone who is younger, a much lower velocity could have

15 caused a very bad injury.


17 Move to strike that.


19 You may examine the witness now.

20 MR. SCAHILL: I need to look at the

21 doctors chart and ask for a few minutes to set

22 everything up.

23 THE COURT: Fine. Let's take a recess.

24 (Whereupon, a brief recess was taken.)

25 * * *

Cross - Dr. Katz - Scahill

37

1 THE COURT: Bring in the jury.

2 (Whereupon, the jury enters the

3 courtroom.)

4 THE COURT: Proceed with the witness.

5 MR. SCAHILL: Thank you.

6 CROSS EXAMINATION

7 BY MR. SCAHILL:

8 Q Good afternoon.

9 A Good afternoon.

10 Q I ask that you project your voice back to me so

11 that all jurors here can hear what you have to say. Okay?

12 A I will do my best.

13 Q Doctor, is this your first involvement in a

14 personal injury trial?

15 A No, I have been involved before like I said.

16 Q You actually get referrals from personal injury

17 attorneys; is that correct?

18 A On rare occasions.

19 Q This plaintiff, Mr. Vodoff, was not referred to

20 you by a doctor.

21 He was referred to you by a lawyer; is that

22 correct?

23 A Not to my recollection.

24 Q I ask that you look at your chart and if I may

25 approach the witness, your Honor?


38

1 THE COURT: You may.

2 Q There was a box on the initial form, and it says

3 referred by and there is a name. That name is

4 Mr. Banilov; is that correct?

5 A I think that's what it says.

6 Q Mr. Banilov is the plaintiff's original lawyer?

7 A Okay.

8 Q Isn't it, in fact, true that Mr. Vodoff was

9 referred to you, not by a doctor but by a lawyer?

10 A Honestly, I don't remember how he got to my

11 office.

12 Q Take a look at the pages. Tell me if you see a

13 lawyer's letter with a lawyer's letterhead for

14 Mr. Banilov's office?

15 A What is the date of this?

16 Q This is an attorney's letter in your chart and

17 that's the referral of Mr. Vodoff to your office.

18 Is that correct?

19 A That's a letter from an attorney. Yes.

20 Q Is that unusual for a personal injury lawyer to

21 be sending you patients?

22 Aren't orthopedic surgeons referred by

23 other doctors and not by lawyers?

24 A Is that illegal? I refer patients to -- it's

25 not usual, no. It's not usual but on occasion it happens.


39

1 Q Do you have a relationship with Mr. Banilov, the

2 lawyer who referred him to you?

3 A I don't even know what he looks like honestly.

4 I don't think I have ever even met him.

5 Q Does he send you his lawyer's clients for you to

6 treat them?

7 A On occasion that may happen. But I can't tell

8 you how often. It's not a usual source of my patients.

9 Q This patient said he looked you up on the

10 internet. He found you on the internet.

11 That was not true --

12 MR. PFLUGER: Objection.

13 MR. SCAHILL: I have not finished.

14 Q He came to you through his lawyer, Mr. Banilov

15 as it clearly says in your chart; is that correct?

16 A I do not recall where he came from to be honest

17 with you. This was three years ago.

18 Q I understand that. But when you have a space on

19 your intake form that says referred by, and in that space

20 it says Mr. Banilov, it's fair to say that that's the

21 person who referred?

22 A Not necessarily. On occasion, if I know the

23 patient has an attorney involved, I would contact the

24 attorney just to know who referred or who has that case

25 in case --


40

1 Q I understand.

2 THE COURT: Let him finish his answer.

3 Please continue.

4 A In case -- I have on occasion -- I treat

5 workers' compensation patients, no-fault patients. We do

6 contact the attorneys on occasion if we have issues with

7 either the insurance paying us or so forth. So just to

8 know who is in charge of the case. That does not mean

9 that he referred me to this patient.

10 Q When it says in your own chart referred by and

11 it indicates Banilov, that means what it says. He was

12 referred by Mr. Banilov?

13 A I do not recall that he referred this patient to

14 me.

15 Q Is your chart accurate?

16 A In most cases, yes. I do have typos all the

17 time.

18 Q It's handwritten. It's not a typo.

19 A It's not my handwriting.

20 Q Is it fair to say Mr. Banilov sends you cases?

21 A Like I said, I never met Mr. Banilov. I don't

22 know what he looks like. If he sends me cases, I am only

23 grateful to him.

24 Q When Mr. Vodoff came to you for the first time,

25 you generated a report, and I am going to pull that up


41

1 here if I can; is that correct?

2 A Yes, that's correct.

3 Q And you talked about before, and I will go to

4 the second page of your report.

5 You talked about in the report your

6 opinion. And your opinion was "if the information given

7 to me by the patient is correct, then the accident of

8 April 17, 2010, is causally related to his injuries."

9 A That's what I wrote.

10 Q On direct examination, you said the history that

11 you take from the patient is 90 percent of your diagnosis?

12 A That's correct.

13 Q It's very important for you as the doctor to get

14 accurate information from the patient to formulate an

15 opinion as to whether or not certain events caused his

16 injuries; is that fair to say?

17 A Absolutely. Yes.

18 Q Your diagnosis is dependent on that history

19 being accurate?

20 A Yes.

21 Q Is that correct?

22 A Yes.

23 Q In this case, you diagnosed Mr. Vodoff with

24 acute injuries that occurred as a result of that April 17,

25 2010 motor vehicle accident; is that correct?


42

1 MR. PFLUGER: April 7.

2 Q April 7. I'm sorry.

3 A Yes.

4 Q Now, when you first saw the plaintiff, you knew

5 based on the referral of Mr. Banilov, that he had a

6 lawsuit as a result of this accident.

7 He came to you with your knowledge --

8 withdrawn. When he came to you, you were aware that he

9 had a lawsuit, a personal injury claim pending; is that

10 fair to say?

11 A It's not fair to say. I don't recall having

12 treated this patient with that knowledge. I remember

13 seeing him as a patient.

14 Q On the intake form where it has his lawyers

15 name?

16 A This is not my handwriting.

17 Q You look at your intake form before you see a

18 patient?

19 A I do.

20 Q On the intake form where it says the lawyer, Mr.

21 Banilov, you knew there was a lawsuit pending because of

22 this accident, correct?

23 A I am not sure what you are leading to.

24 I am not sure -- I don't recall if, when I

25 saw this patient, that I knew there was a lawyer involved.


43

1 Q Let me ask you some basic concepts.

2 You, as a doctor, have to distinguish

3 between subjective complaints and your own objective

4 findings; is that fair to say?

5 A Yes.

6 Q When I talked about subjective complaints, if

7 someone says I feel nauseous, it's a subjective complaint,

8 correct?

9 A Yes.

10 Q If you actually observe, or you know a patient

11 vomited, that's an objective finding; something you can

12 verify as objective, correct?

13 A Yes.

14 Q When someone comes to you, they have subjective

15 complaints as Mr. Vodoff had subjective complaints when he

16 first saw you?

17 A Yes.

18 Q You are aware, in fact, you learned this in

19 medical school, there was a concept known as secondary

20 gain; is that correct?

21 A Yes.

22 Q Could you tell the jury what you understand

23 secondary gain means?

24 A Secondary gain is when a patient has other

25 reasons besides getting better to complain of certain


44

1 things.

2 Q Such as a lawsuit; is that fair to say?

3 A Yes, or this is one of them. Others would be to

4 get out of work, to get medications. There are many

5 reasons why people have secondary gain.

6 Q This patient came to you through a lawyer.

7 Did you take into account secondary gain in

8 your diagnosis and treatment of Mr. Vodoff?

9 A Absolutely not.

10 Q We will get to that in a moment.

11 The history that you took, he told you he

12 was involved in an accident, and he also told you that he

13 may have lost consciousness for a few seconds or a few

14 minutes; is that correct?

15 A Yes.

16 Q He also hold you that he went to his primary

17 care physician, and he sent him for physical therapy; is

18 that also correct?

19 A This is what was written in my note.

20 Q It's written in your note because that's what he

21 told you?

22 A I am not sure if it's correct or not.

23 Q It's written in your note, initial note from

24 6-18-10. That means 6-18-10, it's written in that note

25 because that's what he told you, correct?


45

1 A Yes.

2 Q He also told you the next day, he developed neck

3 pain, radiating pain into his arms.

4 When we talk about radiating pain,

5 radicular pain, that means it travels from the neck down

6 and radiates into the extremities; is that right?

7 A Yes.

8 Q That's what he told you that he had?

9 A Yes.

10 Q Is that fair to say?

11 A Yes.

12 Q Now, you would think that radiating pain is

13 significant; is that correct as an orthopedic surgeon?

14 A Yes.

15 Q And the reason that it's significant is because

16 you suspect as an orthopedic surgeon, if there was pain

17 down the person's arm, that there may be some pathology to

18 the neck, may be a disc injury to the neck impinging on a

19 nerve coming out of the spinal canal causing that

20 radiating pain, correct?

21 A Yes.

22 Q And that is a significant finding; is that

23 correct?

24 A Yes.

25 Q Because that could be indicative of nerve root


46

1 dysfunction at that level?

2 A Correct.

3 Q Now, when you heard that history, did you ask

4 him about the severity of the impact?

5 A No.

6 Q Did you ask him whether or not this involved an

7 accident that towed the back of his car or something just

8 caused a small crack in the bumper?

9 A I did not know.

10 Q Well, didn't you ask him about the severity of

11 the impact?

12 A I asked him how it happened.

13 Q Did he tell you he was hit in the rear?

14 A Yes.

15 Q Did he tell you if he had any injuries at the

16 scene?

17 A What do you mean?

18 Q Did you ask him, did you have pain immediately?

19 Was there any problem at the scene of the accident?

20 A What he told me is that the pain developed the

21 next day.

22 Q The next day. Are you aware that the police

23 report of this incident indicates that there were no

24 injuries reported at all?

25 A I did not see the police report. No.


47

1 Q This is the police report. I have highlighted

2 the portion where it says, "No injuries were reported."

3 Do you see that?

4 A Okay.

5 Q Do you find that to be significant? The fact

6 that you're saying this person needed three surgeries to

7 the neck, to the elbow, and to the shoulder all because of

8 this accident.

9 And at the scene of the accident, there was

10 never a complaint of any injuries by Mr. Vodoff at all?

11 A What I can tell you from my experience is that

12 most people are in such shock after an accident and their

13 adrenaline is going in the body. They do not feel the

14 pain until the next day when they are more calm.

15 Most often, after a car accident, or any

16 injury, the pain becomes not more significant but

17 conscious to them several days later.

18 Also, because over the next few days,

19 spasms increase, and they may be more aware of the pain in

20 other parts of their body.

21 So they may not be actually aware how bad

22 they were injured at the exact time of the accident.

23 Q I can understand that Doctor, but you're coming

24 to court on Mr. Vodoff's behalf and you're telling the

25 jury that he was seriously injured in this accident and


48

1 that the injuries required you to perform all of these

2 three different surgeries, correct?

3 A Correct.

4 Q By the way, you were paid for all of them,

5 weren't you?

6 A Yes.

7 Q There are no outstanding medical bills.

8 As soon as he came in the door you had him

9 sign an assignment to make sure that you get paid; is that

10 correct?

11 A Yes.

12 Q You got paid for the neck surgery, you got paid

13 for the --

14 A I have not looked at the billing. I am not sure

15 if I got paid for all of the bills. I don't routinely

16 check that before I go to court.

17 Q This patients, all these medical bills were

18 paid. The hospital bills were paid. Everything was paid.

19 A I don't know. I don't check that like I said.

20 I don't know if everything was paid.

21 Q Is the severity of the impact of any importance

22 to you?

23 A Obviously, if it's more -- if there is greater

24 force, it would be of more concern.

25 Q How about if it's minor? How about if it's just


49

1 a tap in the rear? Does that change your diagnosis? Just

2 a crack to the bumper? Does that change your diagnosis at

3 all?

4 A I will tell you why.

5 Q I didn't ask you that. Your attorney will ask

6 you questions. I want to ask you questions about how you

7 came to this diagnosis.

8 Now you would make the same diagnosis

9 whether or not someone was hit in the back at 50 miles per

10 hour or if they are hit 10 miles per hour?

11 That's a yes or no question.

12 A The answer is that it depends on the symptoms

13 post accident. If they're asymptomatic, they don't need

14 me. If they develop radicular symptoms with weakness I

15 would make the same diagnosis.

16 Q When we talk about a history, did you ask him

17 where he was treating before he came to you? The accident

18 happened in April. He came to you in June. For the last

19 two months, he was under treatment by someone else.

20 Didn't you ask him about that?

21 A Yes, I did.

22 Q Did you realize or come to know that he was

23 treated by a doctor named Dr. Elsoury at Recover Medical?

24 A That's what he mentioned to me. Yes.

25 Q Did you get his records? That doctor's records?


50

1 A Aside from the MRI reports, no.

2 Q Would you agree with me in order to make a

3 proper diagnosis, it's important for you to have as much

4 medical records as possible? Would agree with that?

5 A As much significant medical records as possible.

6 Q Would you also agree that treatment records for

7 the two months before he saw you, were significant records

8 that you should have looked at?

9 A I would --

10 Q That's a yes or no.

11 A It depends. If it's something that would change

12 my management, yes. But looking at what type of hot packs

13 he had or physical therapy he received, to me the physical

14 therapy doesn't --

15 Q How about the initial evaluation?

16 What complaints he made when he first went

17 to the doctor, how many days he went to the doctor after

18 the accident, do you think that's significant?

19 A It's significant to the patient but in terms of

20 me making a diagnosis, it would not change my diagnosis.

21 Q Were you aware he went to work after this

22 accident or worked all night?

23 A Yes.

24 Q Were you aware that the following day, he had a

25 day off and took his son to school, and he never called a


51

1 doctor?

2 Are you aware of that?

3 A My understanding is that he worked for a few --

4 for some period of time before he was not able to work

5 anymore. He stopped sometime in May.

6 Q Immediately after the accident?

7 A I was not aware of that.

8 Q Do you think it's significant that someone is

9 claiming a serious injury from a motor vehicle accident,

10 goes to work that night, works an eight-hour shift and

11 goes home the next day, and does not call his doctor?

12 Do you think that's significant? It's

13 really a yes or no.

14 A My answer is different. People have different

15 work ethics. Some people go to work even if they have a

16 fever or are in pain.

17 Some people do not want to go to work at

18 all. So it depends on the individual.

19 Q Let's try this as a yes or no.

20 MR. PFLUGER: Perhaps, he can't answer

21 it as a yes or no.

22 Q If you can't answer it with a yes or no, tell

23 me.

24 A Repeat that please.

25 Q We will go on to another question.


52

1 Were you aware he was offered two days and

2 he went about his normal activities and never called his

3 doctor?

4 That's a yes or no.

5 A No.



8 Q Were you aware he never went to a doctor and

9 didn't call a doctor until at least a week later? Five to

10 seven days later?

11 MR. PFLUGER: It's not the testimony.

12 Objection.


14 Q Are you aware that the first medical treatment

15 was on April 12, 2010?

16 A No.

17 Q Do you find that significant that there was a

18 five day gap between the motor vehicle accident and his

19 first visit to a doctor; yes or no?

20 A No.

21 Q Are you also aware that he had a primary care

22 physician that he went to see on at least a yearly basis

23 for all kinds of complaints, and he did not go to that

24 primary care physician, not even for a referral no less an

25 examination after this accident.


53

1 A I was not aware of that.

2 Q Would you find that to be significant?

3 A No.

4 Q I will ask that you go through with me the first

5 treatment records that he had and tell me if the history

6 that is presented, the time he first goes to the doctor

7 and his initial examination at Recover Medical is also

8 compatible with what he told you.

9 He told you he had a loss of consciousness,

10 correct?

11 A What is the question?


13 This is not the April 12 report.

14 Q April 14, the initial examination report.

15 Initial examination report of April.

16 MR. PFLUGER: April 12 is when he first

17 went?

18 THE COURT: Objection overruled.

19 Continue.

20 Q Are you aware that on the initial examination

21 report from Recover Medical Services, history of present

22 condition, he has no loss of consciousness.


24 A No.

25 Q Are you also aware that he was not treated at


54

1 the scene by an emergency crew?

2 A I was not aware.

3 Q Were you also aware that he put down his level

4 of pain to his neck on the initial examination between a 4

5 and an 8?

6 A Like I said, I have never seen this record.

7 Q Would you consider a scale is 0 to 10, 10 being

8 the most pain. Would you consider a 4 to 8 moderate?

9 A Yes.

10 Q Were you also aware that there is an evaluation

11 done on that first visit that he had to Recover Medical

12 and in that evaluation there was an issue as to whether or

13 not on his chief complaints, whether or not there was any

14 radiation of the neck pain that he was complaining about.

15 You said it was important to determine

16 whether or not there was radiating pain because that

17 radiating pain could be indicative of a disc injury to the

18 spinal column when he was first evaluated, and he said he

19 had --

20 A Who made the checks? He or the guy examining

21 him?

22 Q Dr. ElSoury made the medical records. When he

23 first went to the doctor, five days after the accident, it

24 indicates he had no radiation.

25 When someone has neck pain without


55

1 radiation, they can have a minor sprain or strain; isn't

2 that so, Doctor?

3 A It says he has a paresthesia, numbness and

4 tingling. I can't comment on his records.

5 Q But neck pain without radiation could be

6 indicative of a minor sprain or strain; isn't that

7 correct?

8 A That is correct.

9 Q That's what Mr. Vodoff reported on the date of

10 the first visit to Recover Medical.

11 Now, you told us before that Mr. Vodoff

12 suffered a shoulder injury that required surgery by you in

13 October of 2010, correct?

14 A Yes.

15 Q Were you also aware that they did a range of

16 motion evaluation for his shoulder, both shoulders, when

17 he first went to Recover within a week after the accident.

18 And all findings were normal?

19 A Are you sure that they did an exam, or did they

20 just circle the column?

21 Q These are the plaintiff's records.

22 A You asked me to comment on another doctor's

23 notes. I was not aware of this.

24 Q Plaintiff's counsel offered records into

25 evidence. These are the plaintiff's records from Recover


56

1 Medical. Dr. Elsoury has not come in. I am relying on

2 the doctor's records. This is what it said.

3 Do you find this significant that he had

4 normal range of motion to the shoulders within a week

5 after the accident?

6 A I do not know who Dr. ElSoury is. I don't know

7 how well he does his exam, and I can't comment on this

8 really.

9 You are asking me to look at a piece of

10 paper that someone else circled.

11 Q Would you agree that the fact that he had a

12 range of motion that's completely normal, a week after the

13 accident is a significant finding?

14 A If it's true, yes.

15 Q Would you also agree that you did not bother to

16 get his treatment records from Recover Medical for the

17 medical office treating him for at least two months after

18 he came to you; is that correct?

19 A Yes.

20 Q Now, are you also aware at Recover Medical that

21 they interviewed him, including physical exam, and they

22 put together an outcome assess summary based on a neck

23 disability index questionnaire and 0 is no neck problems

24 and 100 is the worst.

25 After the accident score was a 28.


57

1 Would you agree with me that that's a minor

2 finding?

3 A If it's accurate, yes.

4 Q So, within a week after the accident, he has no

5 radiating pain. Neck disability is a 28. You just told

6 us is minor.

7 So wouldn't you say it's more indicative of

8 a minor sprain and strain?

9 A Yes, if that's accurate or true, then you are

10 right.

11 Q Doctor, as I said before, plaintiff's counsel

12 put records into evidence.

13 These are the plaintiff's medical records.

14 They also evaluate his lower back pain. Lower back pain

15 came in at a 10 out of 100. He said he didn't have

16 problems at all with his lower back.


18 A Yes.

19 Q There is a finding of 10 out of 100.

20 They did an evaluation also at Recover

21 Medical of his shoulder.

22 Shoulder problems within a week after the

23 accident, this is 4-14-10 on a scale of 10 to 30. His

24 shoulder problems came in on a sale of 0 to 130, shoulder

25 problems came in at a 10. Within a week after the


58

1 accident, would that also be indicative of a minor

2 problem?

3 A If it's accurate, yes.

4 Q All of his records from Recover Medical which

5 you didn't bother to even look at, point to -- not a

6 herniated disc caused by the accident, a shoulder tear or

7 impingement caused by the accident, they point to just a

8 minor neck sprain and minor shoulder sprain, correct?

9 A That's what their records seem to indicate.

10 Q They indicate that because that's what the

11 doctor's findings were?

12 A What is his specialty? What kind of doctor is

13 he?

14 THE COURT: That last statement is

15 stricken from the record.

16 Q You talk about Dr. Senat.

17 Were you aware when Mr. Vodoff came to you

18 that he was also treating with a doctor, Dr. Senat?

19 A Yes.

20 Q Did he tell you he saw Dr. Senat?

21 A Yes, he did.

22 Q Did you bother to get Dr. Senat's records?

23 A No, because he left the treatment of the

24 shoulder to Dr. Senat.

25 Q You did the shoulder surgery?


59

1 A Correct.

2 Q Would it have been proper medical treatment to

3 get the records of a doctor who was seeing him for his

4 shoulder within two months after the accident?

5 A If I thought it would change my management, I

6 would. But I can do my own exam.

7 Q I understand that. But you just told us that

8 you left the shoulder treatment to Dr. Senat.

9 You were just treating his neck?

10 A My understanding from what the patient told me

11 is that he was recommending surgery.

12 Q Dr. Senat is an orthopedic surgeon, correct?

13 A That's correct.

14 Q You are an orthopedic surgeon, correct?

15 A Yes.

16 Q You take the same board certifications, correct?

17 A Yes.

18 Q Are you aware that on June 7, Mr. Vodoff made no

19 complaints about his neck to Dr. Senat: Are you aware of

20 that?

21 A No.

22 Q This is Dr. Senat's report from June 7, 2010.

23 Mr. Vodoff is telling him he can't brush his teeth or

24 brush his hair or reach backwards, and he is followed by

25 Dr. ElSoury who referred him to that office for orthopedic


60

1 evaluation.

2 If Mr. Vodoff had such an injury to his

3 neck, followed that required surgery within three weeks,

4 wouldn't you find it logical that when he went to see an

5 orthopedic surgeon, he would say I have a serious problem

6 in my neck?

7 A Unless he thought that Dr. Senat does not treat

8 the neck and he was only complaining of his shoulder.

9 Q Does that make sense to you?

10 A Yes, that's his specialty. He does not do

11 necks.

12 Q Look at the history he told Dr. Senat. He told

13 him before he saw you that he has hypertension, diabetes

14 and he smokes half a pack a day for the last three years.

15 Did he deny that he smoked?

16 A Yes.

17 Q Did he tell you he had a history of diabetes?

18 A He did not. No.

19 Q Those are important medical conditions to know

20 about? Smoking and diabetes? Both have effects on a

21 person's spine, correct?

22 A Yes.

23 Q You didn't know about those deleterious effects?

24 A He told me he quit smoking.

25 Q If someone has diabetes, you, as the doctor


61

1 examining, you need to know that because someone with

2 diabetes, their spine can have pathology that someone that

3 does not have diabetes?

4 A I found out because of pre-operative screening

5 that he had elevated sugar.

6 Q You didn't make that at the time of the

7 evaluation? You claimed everything was due to the car

8 accident.

9 He told Dr. Senat something different than

10 what he told you, correct?

11 MR. PFLUGER: Objection to the form.


13 A It appears so. Yes.

14 Q Now that he told you one thing and told Dr.

15 Senat something other, do you want to revise your opinion

16 on that secondary gain opinion?

17 A What do you mean by that?

18 Q Meaning he had a lawsuit pending and he didn't

19 tell you about these things because he wanted you to say

20 that the car accident was the cause of these problems and

21 not his diabetes and not his smoking and not his

22 degenerative arthritis that he had?

23 A Diabetes does not cause herniated discs. It

24 could make your complications more likely but it's not a

25 causative disease that can cause you to have a herniated


62

1 disc.

2 Q Do you know that he went to Dr. Senat again on

3 June 16 for a followup exam?

4 A I knew he went to him several times.

5 I don't know the dates.

6 Q This is before he saw you?

7 A Yes.

8 Q Two days before he saw Dr. Senat and he didn't

9 tell you about that, correct?

10 A He did. He told me he saw Dr. Senat on several

11 occasions and was treating with his shoulders. That's why

12 I didn't mention shoulders in my report, and I assume

13 that's why he didn't mention the neck in his report.

14 Q The findings that Dr. Senat put in his report,

15 bilateral impingement syndrome. That's on both sides that

16 he has impingement. You talked about a bone spur between

17 the clavicle collar bone and a acromion.

18 That's not a traumatic condition? It's a

19 bony outgrowth and that could be degenerative and could be

20 part of him having arthritis, correct?

21 A Correct.

22 Q This was not caused by this accident then, was

23 it?

24 A No, but the accident could have made something

25 that was there more symptomatic.


63

1 Q But, that's not what they are claiming.

2 They claim that the accident caused these

3 problems.



6 MR. PFLUGER: He is mischaracterizing

7 it.

8 Q All findings, Doctor, all of these findings,

9 bursitis, tendinitis, bilateral impingement, a 54-year-old

10 male could have them with or without an accident; isn't

11 that fair to say?

12 A Correct.

13 Q Especially a 54-year-old male who was athletic

14 and who did weight lifting or did other heavy lifting at

15 work?

16 A Yes, you can have that. Yes.

17 Q All of these findings that Dr. Senat has two

18 months after the accident could be because of his

19 lifestyle?

20 A Yes.

21 Q Having nothing to do with a motor vehicle

22 accident?

23 A Could be.

24 Q So if we were -- forget the courtroom. Forgot

25 being in a courthouse. If we were in a hospital and you


64

1 looked at his films and didn't know about an accident,

2 these would not be unusual findings; is that fair to say?

3 A Yes.

4 Q Did you look at those x-rays?

5 A I had my own x-rays done.

6 Q Were you aware there was no fracture or

7 dislocation?

8 A Yes.

9 Q You also talked about EMG testing. I want to go

10 over that.

11 A Yes.

12 Q Needles were put in the arm to test for the

13 length of time that a nerve needs to receive or accept

14 stimulation?

15 A Correct.

16 Q And that's an important test to determine

17 whether or not there were any radicular symptoms?

18 A Yes.

19 Q Radicular symptoms?

20 A Yes.

21 Q You sent him after the surgery for EMG testing?

22 A Yes.

23 Q Am I correct that there was no finding of

24 radicular symptoms?

25 A Yes.


65

1 Q EMG testing can also predate a herniation; is

2 that fair to say?

3 A It could. Yes.

4 Q And the reason it could do that is because when

5 you take an EMG, if there is abnormal findings that show

6 radiculopathy symptoms, that could be actually traced back

7 to a date when those symptoms --

8 A Not a date. It could tell you whether or not

9 it's acute or chronic. It can't tell you what date it

10 happens. I can't tell you if it happened recently or last

11 month or more than a year.

12 Q Were you aware that Recover Medical sent Mr.

13 Vodoff for EMG testing in June, 2010, before he saw you?

14 A Yes, actually I think I have a copy of that.

15 Q That's a significant finding?

16 A I think so. I don't remember the actual

17 findings on that test.

18 Q I will go over that with you. But would you

19 agree that EMG testing was a key part of the diagnosis?

20 A I disagree because EMG testing is a subjective

21 test. It's not like an MRI where you see pictures. EMG

22 is an extension of an exam of the doctor whose doing it.

23 So, it's essentially as good as the doctor who is

24 performing the test.

25 Q We just talked about an EMG being able to date a


66

1 herniation?

2 A In other words --

3 Q Doctor, we just talked about an EMG test being

4 able to date a herniation. You said they can't bring it

5 down to a date but whether or not it's acute or chronic?

6 A Yes.

7 Q The EMG done within two months after the

8 accident has no radicular symptoms whatsoever; is that

9 fair to state?

10 A I guess. The EMG test is an extension of an

11 exam.

12 THE COURT: I will instruct that you

13 answer the question as it's being asked.

14 Q EMG testing done within two months after the

15 accident had no radicular findings whatsoever?

16 A That's what it says.

17 Q So can you also agree that if the EMG within two

18 months of the accident has no findings of an acute

19 herniation, that this was not an acute herniation to this

20 cervical spine.

21 It's a yes or no.

22 A I do not agree.

23 Q The MRI that you talked about, I would like to

24 go over that. You didn't order your own MRI. He had an

25 MRI within two weeks of the accident?


67

1 A Correct.

2 Q You had an MRI of April 20, 2010 at KKM Medical

3 Diagnostic wherein you looked at those films and you

4 looked at those findings?

5 A Yes.

6 Q Does herniations found on that radiology

7 report -- by the way do you know Dr. Shapiro?

8 A I do not.

9 Q Do you refer patients to KKM?

10 A No, I do not.

11 Q You never heard of this facility?

12 A I heard of it but never referred.

13 Q So this is not a preferred --


15 Q This is not a preferred radiologist that you

16 would recommend?


18 THE COURT: Objection sustained.

19 Before we continue, please approach.

20 (Whereupon, an off-the-record

21 discussion was held at the bench

22 between court and counsel.)

23 THE COURT: All right. We are going to

24 break for the day. It's 4:30. However, take notice

25 that we will be returning next Wednesday.

68

1 We will continue this trial at that

2 time.

3 I remind you to please not discuss the

4 case amongst yourselves or with anyone at home.

5 Enjoy the long weekend, and I will see

6 you all Wednesday morning at 9:30 a.m.

7 (Whereupon, the jury exits the

8 courtroom.)

9

10

11

12

13

14 * * *

15 (Whereupon, the matter was concluded

16 and adjourned to Wednesday, 11-6-13

17 at 9:30 a.m.)

18

19 The foregoing is hereby certified to be a

20 true and accurate transcript of the proceedings

21 as transcribed from my stenographic notes.

22

23 ________________________ SUSAN OLIVA, CSR.

24 SENIOR COURT REPORTER

25

69

1 NOVEMBER 1, 2012

2

3 TO PICCIANO & SCAHILL,

4 900 MERCHANTS CONCOURSE, STE 310

5 WESTBURY, NY 11590 516-294-5200 FAX 516-873-6229

6 SENIOR COURT REPORTER KINGS COUNTY SUPREME COURT

7 REMIT TO:

8 SUSAN OLIVA

9 9701 SHORE ROAD, 5-F

10 BROOKLYN, NEW YORK 11209

11

12 347-296-1939 OFFICE 347-296-1975 FAX

13

14 BILL FOR STENOGRAPHIC MINUTES :

15 FOR TRANSCRIPT IN

16 EDUARD VODOFF V. TAHIR MEHMOOD

17 INDEX NO. 18998-2010

18 BILL FOR STENO FEES IN THE FOLLOWING MATTER (S)

19 TRANSCRIPT PLUS EMAIL PLUS 68 pages

20 TRANSCRIPT OF DR. KATZ TESTIMONY $ 452.22

21

22 TOTAL AMOUNT DUE TO SUSAN OLIVA = $ 452.22

23 TOTAL OUTSTANDING $ 902.70 plus $ 452.22

24

25 TOTAL BILLING..........................$ 1354.90

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CIVIL TERM: PART 66 -------------------------------------X EDUARD VODOFF, Plaintiff IND#18998/10 - against - TAHIR MEHMOOD and ROBOT TAXI CAB, LLC., TRIAL EXCERPT Defendants. -------------------------------------X 360 Adams Street Brooklyn, New York November 7, 2013/AM B E F O R E : HONORABLE RICHARD VELASQUEZ, PRESIDING A P P E A R A N C E S: DINKES & SCHWITZER Attorney for the Plaintiff 112 Madison Avenue New York, New York By: GEORGE PFLUGER, ESQ. of Counsel PICCIANO & SCAHILL, PC Attorney for the Defendants 900 Merchants Concourse Westbury, New York By: FRANCIS J. SCAHILL, ESQ. MICHELE WALKER,

OFFICIAL SENIOR COURT REPORTER

Proceedings 2 1 THE COURT: Good morning, all. 2 We are on the record in the matter of 3 Vodoff versus Mehmood. Index 18998 of 2010. 4 Appearances for the record, please? 5 MR. PFLUGER: George Pfluger. 1123 6 Madison Avenue, for plaintiff. 7 THE COURT: Good morning, Counselor. 8 MR. SCAHILL: Good morning, your Honor. 9 Frank Scahill. 900 Merchants Concourse, 10 Westbury, New York. 11 THE COURT: Good morning. 12 You may begin. 13 MR. SCAHILL: Thank you, your Honor. 14 Your Honor, during the cross-examination 15 of Dr. Gregory Montalbano, The Court had 16 sidebar with counsel for the plaintiff and 17 myself in which I expressed an objection to 18 allowing plaintiff's counsel to cross-examine 19 Dr. Montalbano with the use of reports from a 20 doctor who had examined the plaintiff during 21 the course of a no-fault evaluation for PIP 22 Benefits. I'd like to place an objection on 23 the record to the use of the report. I find 24 Mr. Pfluger -- in fact there were two reports,

25 one for orthopedist. My orthopedist was

Proceedings 3 1 Dr. Denton. D-E-N-T-O-N. And from a fracture. 2 Your Honor, the plaintiff should not be 3 allowed to use the doctors if they were called 4 as witnesses in this case, and I think it was 5 improper to allow him to use reports from a 6 doctor who is not called as a witness on behalf 7 of the plaintiff to bolster his opinion that 8 the injuries are causally related to the 9 accident. 10 THE COURT: Counselor? 11 MR. PFLUGER: Yes, Judge. 12 As The Court's well aware, we stipulated 13 to a vass majority of all the records that are 14 in court, including the no-fault file. And 15 subject to redaction of any insurance 16 information. That was the only eliminating 17 request. And medical -- counsel made mention 18 that the no-fault records contain most, if not 19 all, of the medical records, including reports 20 by doctors. 21 Our position, counsel stipulated to 22 subject -- to the insurance or redactions which 23 we talked about yesterday. And I think it's 24 absolutely proper, since it's in evidence and

25 now subject to inquiry and questioning, and

KATZ - Cross/Scahill 4 1 it's totally proper, Judge. 2 THE COURT: The record is complete. The 3 decision stands. 4 COURT OFFICER: Jury entering. 5 THE COURT: Good morning, jurors. 6 Be seated. Let's begin. 7 We are going to continue with the 8 cross-examination. 9 MR. SCAHILL: Yes, your Honor. 10 THE COURT: Please, Dr. Katz. 11 We are going to continue with the 12 examination of Dr. Katz. That was not 13 concluded a couple of days ago. 14 Counselor, you may begin. 15 COURT CLERK: Witness is reminded you're 16 still under oath. 17 THE WITNESS: Yes, Ma'am. 18 V I C T O R K A T Z, M.D., having been 19 recalled as a witness, having been previously duly 20 sworn, testified as follows: 21 CROSS-EXAMINATION 22 BY MR. SCAHILL: cont'd 23 Q Good morning, Dr. Katz. 24 A Good morning.

25 Q Doctor, when we left off last week, there

KATZ - Cross/Scahill 5 1 was certain information that you indicated you did 2 not have at the time of your evaluation of this 3 plaintiff. And I'd like to go over them and then 4 move on from where we left off. 5 A Yes, sir. 6 Q The first thing that you indicated you 7 were not aware of was that there was no complaint of 8 injuries at the scene, and I showed you the police 9 accident report; is that correct? 10 MR. PFLUGER: Objection, Judge. We've 11 done this. He's asked questions about it. Now 12 we're revisiting -- 13 THE COURT: I am going to allow it 14 briefly, then we are going to move on. 15 You may continue. 16 MR. SCAHILL: Thank you, your Honor. 17 My cross was broken up because of the 18 doctor's scheduling. 19 Q You are aware now that he had no injuries 20 at the scene, correct? 21 A Yes. 22 MR. PFLUGER: No injuries -- no 23 complaints -- 24 THE COURT: Sustain the objection.

25 Rephrase the question.

KATZ - Cross/Scahill 6 1 Q You are aware that he had no complaints of 2 injuries at the scene? 3 A Yes. 4 Q You are aware he went to work that night 5 and worked an eight-hour shift? 6 A Yes. 7 Q You are aware that he continued his normal 8 activities that week, that he had two days off and 9 then he went back to work as scheduled? 10 MR. PFLUGER: Objection. That is 11 mischaracterization. He stayed home, Judge. 12 THE COURT: Sustained. 13 MR. SCAHILL: Judge, jury's recollection 14 obviously controls. 15 THE COURT: Rephrase your question. 16 Q You are aware he continued his normal 17 activities for five days until he went to Recover 18 Medical on April 12? 19 MR. PFLUGER: Objection, that is not the 20 testimony. 21 THE COURT: Sustained. 22 Q You are aware he didn't call his primary 23 doctor, correct? 24 A Yes.

25 Q You're also aware that he was referred to

KATZ - Cross/Scahill 7 1 you by Mr. Banilov, an attorney? 2 MR. PFLUGER: Objection. 3 THE COURT: Sustained. 4 Q Your records indicate that the referring 5 person to your office was Mr. Banilov? 6 A That is not correct. 7 MR. PFLUGER: Objection. 8 MR. SCAHILL: We went over that in detail. 9 Q You are aware on his first visit to 10 Recover that he had full range of motion to his 11 shoulder, correct? 12 A Repeat the question? 13 Q On his first visit -- 14 MR. SCAHILL: If I may, your Honor, open 15 up this screen. 16 Q -- on his first visit to Recover Medical, 17 he had full range of motion to his shoulder, you're 18 aware of that, correct? 19 A Yes. 20 Q You're also aware that on his first visit 21 to Recover had an indication that his neck pain -- 22 MR. PFLUGER: Objection. 23 Q -- was between a scale of four to eight, 24 which you indicated in your testimony would be

25 considered moderate?

KATZ - Cross/Scahill 8 1 MR. PFLUGER: Objection. This has been 2 done -- 3 THE COURT: I am going to allow it. 4 Overruled. 5 A Your question -- you're referring to my 6 notes or to this other note that you have up on the 7 board? 8 Q Your testimony, you indicated the pain 9 scale that he was complaining of, when he went to 10 Recover Medical, you said that that was moderate? 11 A Yes. 12 Q And you also said that the fact that there 13 was no radiation of pain, that his neck pain was 14 without radiation, would be indicative of a minor 15 sprain? Do you recall that testimony? 16 A I am not sure I understand your question. 17 Can you please repeat that? 18 Q When you testified last week, you said the 19 fact that there was no radiation of pain upon his 20 first visit, would be indicative of a minor sprain? 21 You recall that testimony? 22 MR. PFLUGER: Objection. 23 THE COURT: Overruled. 24 A I still don't understand the question.

25 Can you repeat the question? What are you asking

KATZ - Cross/Scahill 9 1 me? 2 Q I'll review the actual testimony with you, 3 Doctor. 4 This is transcript of your testimony. 5 This is from the trial last week. And I asked you, 6 within a week of the accident he has no radiating 7 pain. Next disability is 28, you just told us 8 that's minor. I asked you, so wouldn't you say it's 9 more indicative of a minor sprain and strain, and 10 you said, yes, that is accurate and you're right? 11 A I may not have understood. I still don't 12 understand what you're trying to ask me. 13 Q This was your testimony from last week. 14 A I understand the way I said it. 15 Q And you also indicated last week that the 16 fact that he had full range of motion from the upper 17 extremities on his first visit that is a significant 18 finding? 19 A No, I did not indicate it was significant 20 finding. I agreed that I saw your note that you put 21 up on the board, and this note they circle it was 22 normal range of motion. I agreed to that. 23 Q I just want to talk about what you said 24 last week and use that as a starting point. When we

25 talked about full range of motion of the shoulders.

KATZ - Cross/Scahill 10 1 You said that that was a significant finding? 2 A Again, I want to clarify, I did not say 3 was significant. I said, I agreed that that is what 4 your note said. Which was not my note. Was a note 5 that you put up on the board by some other 6 physicians when first -- 7 Q Okay, Doctor. This is a transcript of the 8 exact questioning, the exact answer that you gave 9 last week. Do you recall being asked this question 10 -- 11 A Yes. I do recall. 12 Q Please let me finish. 13 Would you agree that the fact that he had 14 range of motion that is completely normal the week 15 after the accident is a significant finding, and you 16 answered, if it's true, yes. 17 A That's exactly what I said. 18 Q And you stand by that testimony, correct? 19 A I agree this is what I said. 20 Q You also testified last week that fact 21 that he had a neck disability index on his first 22 examination of 28, on a scale of a hundred, would be 23 indicative of a minor injury?

24 MR. PFLUGER: Objection, Judge. 25 THE COURT: Overruled.

KATZ - Cross/Scahill 11 1 A Yes. 2 Q And the shoulder assessment that was done 3 at Recover Medical, on his first visit, would also 4 be indicative of a minor injury; you recall that 5 testimony? 6 A Yes. 7 Q Now, you also recalled telling the jury 8 that all of the records from Recover Medical point 9 to a minor sprain or strain and not the traumatic 10 injury that you have done surgery on? 11 MR. PFLUGER: Objection. 12 THE COURT: I am going to overrule it. 13 You may answer the question. 14 A Can you repeat the question? 15 Q I will go through it with you. 16 It's on page 58 of the transcript from 17 last week. I asked you, all of his reports from 18 Recover Medical, which you didn't bother to even 19 look at, point to not a herniated disk caused by an 20 accident, a shoulder tear, or impingement caused by 21 the accident, they point to just a minor neck sprain 22 and minor shoulder sprain, correct? 23 A That is correct.

24 Q And you answered that's what their records 25 seem to indicate.

KATZ - Cross/Scahill 12 1 A Yes. 2 Q You do you remember being asked that 3 question? 4 A Yes, absolutely. 5 Q Do you stand by that testimony? 6 A If I said it, of course, I stand by it. 7 Q I want to ask you about Dr. Senat's 8 records and his findings. 9 When we left off, we were talking about 10 EMG testing. And you admitted that the EMG testing 11 showed no chronic denervation -- withdrawn. 12 You admitted that the EMG testing showed 13 no acute herniation, and all of the findings on the 14 EMG testing showed chronic injury; is that correct? 15 MR. PFLUGER: Objection. That is not what 16 his testimony is, Judge. 17 THE COURT: Overruled. 18 MR. PFLUGER: I have it right here. It's 19 not his answer. 20 MR. SCAHILL: Let me go through this -- 21 THE COURT: I overruled the objection. 22 Counsel, let's continue. 23 Q Let me go through this with you, Doctor.

24 Dr. Senat saw this plaintiff before he saw 25 you. And his records are in evidence. His records

KATZ - Cross/Scahill 13 1 show an examination that is compatible with 2 bilateral impingement syndrome with subdeltoid 3 bursitis, bicipital tendinitis and rotator cuff 4 injury, worse on the right side. 5 Am I correct that all of these findings 6 can be found on examination of a 54 year old male 7 with or without a kinematic event? 8 A I disagree. 9 Q Am I correct, Doctor, that bursitis 10 tendinitis can be caused by arthritis and repetitive 11 motion, as opposed to one traumatic injury? 12 A Yes. 13 Q And, in fact, it's common findings on a 54 14 year old male of bursitis and tendinitis? 15 A Yes. 16 Q And those are all repetitive stress 17 injuries, yes? 18 A Could be repetitive or traumatic. 19 Q Someone who was involved in 20 weight-lifting, someone that does heavy lifting in 21 their job? 22 A Yes. 23 Q This would not be atypical finding; is

24 that fair to say? 25 A Yes.

KATZ - Cross/Scahill 14 1 Q Also I want to ask you about the EMG 2 testing. You sent this plaintiff for EMG testing, 3 correct? 4 A To Dr. Bleicher. So this is not the test 5 that I sent him for. This was done prior to -- 6 Q I will bring up the one you sent him for. 7 A Sure. 8 Q Then we talked about the one -- the EMG 9 testing that you sent him for. You wanted to rule 10 out a condition, correct? 11 A Yes, sir. 12 Q You wanted to rule out whether or not he 13 had radiculopathy? 14 A No. 15 Q Caused by a compression of the disk on a 16 nerve in the cervical spine; is that correct? 17 A No, that is incorrect. From what I 18 remember I sent him for EMG after the surgery. So 19 at that point, I was not concerned with the 20 radiculopathy. I was more concerned with the 21 compression of the ulna nerve on the left side. 22 Q Were you aware that he did, in fact, have 23 EMG testing before he went to -- before he went to

24 your office? 25 A To me EMG -- I don't use EMG test to make

KATZ - Cross/Scahill 15 1 decisions about surgery. So I don't think I was 2 aware of the test. I use -- when I decide somebody 3 need surgery, I do not need EMG test. 4 Q When we were discussing this last week, 5 you had admitted that the EMG testing can show 6 whether a disk injury was chronic or acute. 7 Correct? 8 MR. PFLUGER: Objection. That is not -- 9 THE COURT: Sustained. 10 Q Isn't it a fact, Doctor, that you 11 testified that the EMG testing can, in fact, show 12 whether a disk herniation was chronic or acute? 13 A Yes. 14 Q That was your testimony last week to the 15 jury? 16 A Yes. 17 Q And you're also aware that you did, in 18 fact, go to MML Medical PC, June 7, 2010, before he 19 saw you, and that finding on that examination 20 indicated no acute radiculopathy or no acute injury, 21 no acute disk herniation; is that also correct? 22 A Well, just for your information. EMG does 23 not indicate herniation or not. It indicates a

24 nerve compression. Which it did indicated -- I 25 indicated bilateral new ulnar nerve --

KATZ - Cross/Scahill 16 1 Q That has nothing to do with the cervical 2 spine, correct? 3 A Of course it does. 4 I also did the surgery on his left ulnar 5 nerve. 6 Q I understand. We'll get to that in a 7 minute. 8 There is no finding on the EMG that was 9 done before he saw you in June, 2010 of radicular 10 symptoms; is that correct? 11 A That's correct. 12 Q Which would be indicative of a chronic 13 problem, as it goes, to acute problem, from what I 14 also told you; is that correct? 15 A As I said, if it's accurate. I would 16 indicate that. 17 Q Assuming that it is accurate? 18 A Then yes. 19 Q It would show that this disk herniation 20 that you did the surgery for, was not an acute 21 problem, was a chronic problem? 22 A Well, really mean it doesn't exist. I 23 would deny the fact that the guy has herniated disk

24 or radiculopathy. 25 Q Now, MRI testing that was done in this

KATZ - Cross/Scahill 17 1 case, you said you looked at the films that were 2 done at KKM. We were discussing that when we 3 stopped off the other day. Do you recall that? 4 A Yes. 5 Q And you also indicated that the -- that 6 was not a medical facility that you were familiar 7 with, correct? 8 A That is correct. 9 Q But you relied on the films that were 10 taken at that facility, and you used those films 11 when you did the surgery on Mr. Vodoff, correct? 12 A Correct. 13 Q Now, MRI impression was multi-level disk 14 herniations, correct? 15 A Correct. 16 Q The multi-level disk herniations were at 17 three different levels. C3, C4. C4, C5. C5, C6. 18 Is that correct? 19 A That is correct. 20 Q And there was also an issue with the 21 submandibular gland. Was swollen, there's some 22 prominence that the doctor who read the films 23 indicated, should be seen by a clinician. That is

24 underneath the jaw bone, there was some prominence 25 to the gland underneath the jaw, correct?

KATZ - Cross/Scahill 18 1 A Yes. 2 Q Now, these findings of disk herniations at 3 multiple levels, is that compatible with an 4 arthritic condition? 5 A Well, first of all -- 6 Q That's yes or no, Doctor. 7 MR. PFLUGER: Objection. 8 THE COURT: Overruled. 9 You may answer the question. 10 A This indicates -- the reason I always look 11 at MRI -- 12 Q Doctor, could you answer with a yes or no? 13 MR. PFLUGER: Or you can't answer it -- 14 A I cannot answer that question. With yes 15 or no, I cannot answer. 16 Q You said you've done a thousand surgeries 17 in the last ten years or twelve years to cervical 18 spines. And you have operated on other individuals, 19 males in their 50's, correct? 20 A Correct. 21 Q And those individuals have had disk 22 herniations to there cervical spine with or without 23 trauma; is that correct?

24 A Yes. 25 Q It can be considered an arthritic

KATZ - Cross/Scahill 19 1 condition that has nothing to do with a traumatic 2 event? 3 A Yes. 4 Q So am I correct that these findings are 5 compatible with arthritic condition that has nothing 6 to do with trauma? 7 A Yes. 8 Q In fact, if we did a study of 54 year old 9 males in the population, there'll be a significant 10 percentage of people that would have disk 11 herniations to the cervical spine with or without 12 trauma; is that correct? 13 A That is correct. 14 Q You also sent this -- this plaintiff, 15 Mr. Vodoff, to an MRI facility in July of 2012, 16 correct? 17 A Yes. 18 Q You sent him to Complete Radiology? 19 A Yes. 20 Q And the report was written to you as a 21 referring physician, correct? 22 A Yes. 23 Q In that report, the reading -- the

24 radiologist described desiccated discs between the 25 vertebrae at C3, C4 and C4, C5; is that correct?

KATZ - Cross/Scahill 20 1 A That's correct. 2 Q And that is arthritic finding that -- 3 something that takes years to develop; is that also 4 correct? 5 A That is correct. 6 Q And the anterior osteophyte formation, 7 that is a boney outgrowth of the vertebrae, correct? 8 A Correct. 9 Q That is compensation that the vertebrae, 10 the body, is compensating for loss of height in the 11 disk and loss of signal in the disk; is that 12 correct? 13 A To a degree, yes. 14 Q And that also takes years to develop that 15 arthritic condition? 16 A Yes. 17 Q These findings are not traumatic in nature 18 at all; is that correct? 19 A That's correct. 20 Q I'd also like to review with you your 21 operative findings that are found in your operative 22 report. 23 In your report, you indicated this is from

24 the cervical surgery that you performed. You 25 indicated there was presence of osteophytes, the

KATZ - Cross/Scahill 21 1 same osteophytes that were found on the MRI. 2 Correct? 3 A That is correct. 4 Q And osteophytes were more than one level, 5 correct? 6 A Well, only operated on one level, so I 7 didn't really examine the others. They were 8 present, yes. 9 Q That would be indicative of a long 10 standing degenerative process that is arthritic in 11 nature? 12 A That is correct. 13 Q You performed bilateral foraminotomies -- 14 did I pronounce it correctly -- foraminotomies? 15 A Yes. 16 Q Am I pronouncing it correctly? 17 A You are. 18 Q That is to open up the hole where the 19 nerve root exited the vertebral body, correct? 20 A Yes. 21 Q And the surgery that you performed was, 22 correct, arthritic condition to allow for space for 23 the nerve to go through the vertebrae so it wouldn't

24 be -- it would be free from any impingement? 25 A No, incorrect. In addition to the

KATZ - Cross/Scahill 22 1 osteophytes, he also had large herniated disk that 2 is pressing on the nerve on the right side, which is 3 also what I corrected. Yes, he did have a 4 pre-existing condition. But he also had acute 5 herniation. 6 People who have arthritic conditions have 7 also herniated discs and neurological problems. 8 Q I'd like to talk to you about your 9 position that this was acute herniation. 10 When a doctor, such as yourself, examine 11 someone, they are also looking for a differential 12 diagnosis, correct? 13 A Correct. 14 Q Can you explain what the differential 15 diagnosis is? 16 A Differential diagnosis is other causes 17 that can cause the same symptoms. 18 For example, if you have a fever, you can, 19 due to infection, could be due to inflammatory 20 disease, could be due to autoimmune disease. So 21 there's other things that can cause the same 22 symptom. 23 Q And basically when you are formulating a

24 differential diagnosis, you're looking to rule out 25 certain things, correct?

KATZ - Cross/Scahill 23 1 A Correct. 2 Q I'd like you to assume that another 3 orthopedist was here yesterday and testified to a 4 constellation finding. What you're looking for when 5 you're developing a diagnosis. You ever hear that 6 phrase? 7 A I guess so, yes. 8 Q And in medical school, you were taught to 9 go to the most obvious point first. So you ever 10 hear the phrase, if you hear hoof beats -- 11 A Zebra -- 12 Q What they tell you, think of horses, don't 13 think of zebras? 14 A Yes. 15 Q So in this course, did you develop a 16 differential diagnosis? 17 A To a degree, yes. 18 Q I'd like to talk to you about that. As 19 part of your differential diagnosis, can you 20 consider the fact that there was no complaint of 21 injuries at the scene? 22 A I did not have access to his accident 23 report. So I didn't really review that.

24 Q We've already talked about that, and you 25 would find that to be significant, correct?

KATZ - Cross/Scahill 24 1 A What I said was people often don't 2 complain -- may not complain of pain at the scene of 3 the accident. In my experience, most people who I 4 treated after car accidents get severe pain several 5 days later, sometimes three days. Sometimes a week 6 later. So it's not unusual because of the stress of 7 the accident people get so shocked, so much 8 adrenaline, you may not feel pain the day this 9 happens. It's actually very common thing. 10 Soldiers at time of the war have their 11 legs blown off and not feel any pain because of the 12 adrenaline rush. So it's not unusual not to have 13 pain at the time of the accident. Especially if 14 it's not a broken leg or like soft tissue injury. 15 Q Doctor, these issues -- consider these 16 points in formulating a differential diagnosis. 17 A Yes, sir. 18 Q The first that there was no complaint of 19 injury at the scene? 20 A Okay. 21 Q The second that there was no treatment 22 within five days of the accident. 23 The third is that the person went about

24 their normal daily activities and work activities up 25 to five days before the accident.

KATZ - Cross/Scahill 25 1 MR. PFLUGER: Objection, that is not the 2 testimony. 3 THE COURT: I am going to allow it. 4 Overruled. 5 Q The fourth is that they never went to 6 their primary care physician. 7 The fifth that they -- when they examined, 8 they had neck pain, which was moderate with no 9 radiation. 10 The sixth is that they had an evaluation 11 with a neck disability index that was considered 12 minor. 13 The seventh is that they had EMG testing. 14 That ruled out an acute herniation. 15 The eighth is that they had MRI findings. 16 That were compatible with degenerative disk disease. 17 And the ninth that they had, upon surgery, 18 osteophyte formations at multiple levels. 19 Isn't it a fact, Doctor, that the 20 differential diagnosis, the clear differential 21 diagnosis, is that this individual did not suffer a 22 traumatic injury to the back, but, in fact, had 23 degenerative disk disease?

24 MR. PFLUGER: Objection. He left out 25 acute herniation, Judge.

KATZ - Cross/Scahill 26 1 Are we talking about someone else? Are we 2 talking about Mr. Vodoff? That kind of a -- 3 THE COURT: Objection overruled. 4 You may answer the question. 5 Q Isn't it a fact, Doctor, based on all 6 findings -- 7 A Based on those findings, the differential 8 diagnosis includes one acute herniation and two 9 arthritic changes due to degenerative conditions. 10 It was both. 11 Q Your primary diagnose was this was an 12 acute herniation. Correct? 13 A Incorrect. I considered the fact that 14 Mr. Vodoff had -- have arthritic changes, in my 15 thought process, before I decided to take -- to 16 operate. 17 Q But clear differential diagnosis, in this 18 case, is that all of these findings were the result 19 of an arthritic process and not a traumatic event; 20 is that fair to say? That is yes or no? 21 MR. PFLUGER: Or he can -- objection. 22 THE COURT: Overruled. 23 A The differential diagnosis is a list of

24 conditions that can cause this. And not only 25 arthritic changes are part of that list. So is also

KATZ - Cross/Scahill 27 1 acute herniation. 2 Q All findings that I just discussed with 3 you can be found in an individual that was not 4 involved in a minor rear-end collision, correct? 5 A Yes. That's correct. 6 Q And when you were formulating your 7 differential diagnosis, did you also take into 8 account the fact that Mr. Vodoff came to you through 9 a lawyer and issue of secondary gain should be 10 considered by you, the clinician? 11 MR. PFLUGER: Objection -- 12 THE COURT: Sustained. 13 Q Did you take into consider formulating a 14 differential diagnosis and issue of secondary gain 15 that we discussed last week? That is yes or no 16 also. 17 A The answer is no. There was no reason for 18 me to think secondary gain issues. 19 Q Now, I want to talk to you about the 20 shoulder surgery that you performed on Mr. Vodoff. 21 You were aware, in fact, that when he went 22 to Dr. Senat for the shoulder issue, that he was 23 referred for MRI of both shoulders. Correct?

24 A Yes. 25 Q I want to show you the MRI. And you had,

KATZ - Cross/Scahill 28 1 in fact, referred to Horizon Radiology for MRI of 2 his left shoulder, correct? 3 A I don't recall, to be honest with you. 4 Q I want to show you that report. This is 5 referred to you from Horizon Radiology, March of 6 2011. These are the findings with respect to his 7 left shoulder. 8 A Yes. 9 Q Hypertropic changes of AC joint. Mild 10 impingement. Edema, though this the distal 11 clavicle. All these findings are degenerative in 12 nature, correct? 13 A There could be, yes. 14 Q They could be used with or without -- with 15 or without a traumatic event; is that correct? 16 A That is correct. 17 Q Isn't it also correct that the findings 18 for his right shoulder were similar to the finding 19 for his left? 20 A Yes. 21 Q So the findings in his right shoulder 22 could be caused with or without trauma? 23 A Correct.

24 Q Did you take into account the mechanism of 25 injury, how, in fact, the seat-belted passenger in a

KATZ - Cross/Scahill 29 1 motor vehicle accident, which by his own admission 2 caused damage to his car of $600, could have injured 3 his right shoulder or left shoulder in that type of 4 an accident. Did you take that into consider -- 5 MR. PFLUGER: Admitted, there's no 6 admission, Judge. 7 THE COURT: I am going to allow it. 8 A What are you asking me again? Can you 9 repeat it? 10 Q Did you take into account the mechanism of 11 injury, how this person could have injured their 12 shoulder, if they are seat-belted passenger in a 13 motor vehicle accident? That is yes or no? 14 A I couldn't answer the question with a yes 15 or no. 16 Q The operative report of the operative 17 findings that you had when you perform surgery on 18 the shoulder, I'll pull that up in a second. This 19 was done at New York Community Hospital. You 20 indicated your diagnosed rip shoulder impingement, 21 bursitis and synovitis; is that correct, Doctor? 22 A That is correct. 23 Q And the operative report findings, this

24 is, in fact, your report. You examined the labrum. 25 Is that correct?

KATZ - Cross/Scahill 30 1 A Yes. 2 Q You found it to be in tact? 3 The shoulder is a ball and socket joint, 4 correct? 5 A Yes. 6 Q The shoulder is unique of all the joints 7 in the body that it has 360 degrees rotation 8 correct? 9 A A hundred eighty -- 10 Q 300 -- 11 A Yes? 12 A That is the only joint in the body that 13 you could do that? 14 A Yes. 15 Q And it's subject to a lot of wear and 16 tear, correct? 17 A Yes. 18 Q And what holds the joint in place, what 19 holds the ball into that socket, is a series of 20 ligaments, correct? 21 A Yes. 22 Q So when you examined those ligaments, they 23 were all in tact; isn't that correct?

24 A Yes. 25 Q In fact, the findings that you had was

KATZ - Cross/Scahill 31 1 bursitis, was degenerative condition, correct? 2 A No. Incorrect. It could be degenerative, 3 could be traumatic. 4 Q And synovitis, which is accumulation of 5 fluid in the joint, correct? 6 A It's inflammation. Which, again, could be 7 degenerative, could be traumatic. 8 Q And in this case it was your opinion that 9 this was a traumatic injury to the left shoulder? 10 A Yes, sir. 11 Q Is that correct. 12 And we already went through this in 13 detail. But you're aware when he went to Recover 14 Medical five days after the accident, the 15 examination showed completely normal range of motion 16 to the shoulder? 17 A Yes. I'm aware now that you pointed it 18 out to me. 19 Q In fact when he went to Recover Medical 20 within five days of the accident, he didn't even 21 mention his shoulder? 22 A Yes. I'm aware now. 23 Q Well, you wrote a report in this case, and

24 that report indicated the injury to the shoulder was 25 causally related to the accident. Do you recall

KATZ - Cross/Scahill 32 1 that? 2 A Of course. 3 Q You wrote that report for purposes of this 4 lawsuit without the benefit of any of these records 5 which showed normal range of motion to the shoulder 6 within five days of the accident. Is that correct? 7 That is yes or no? 8 A Yes. 9 Q So wouldn't it, in fact, be true, Doctor, 10 the differential diagnosis with respect to the 11 plaintiff's right shoulder was arthritis and 12 degeneration as opposed to a traumatic event? 13 A It would be in differential. 14 Q So if an orthopedist examined this 15 plaintiff and gave testimony indicating that there 16 was no injury to the shoulder in this accident, and, 17 in fact, all of the problems that you saw on 18 arthroscopic surgery were age related, that would be 19 properly diagnose a differential diagnosis; is that 20 correct? 21 MR. PFLUGER: Objection. 22 THE COURT: Overruled. 23 A Well, are you asking me was this an

24 orthopedist to examine. I am not sure. If an 25 orthopedist did examine, it is certainly in

KATZ - Cross/Scahill 33 1 differential, yes. 2 Q It's certainly possible? 3 A It's possible, yes. 4 Q And outside the courtroom, if you look at 5 these studies in a hospital or in your office, all 6 of these things can be found with or without an 7 accident, correct? 8 A Correct. 9 Q I also ask you about the operative 10 findings on the left elbow. Is it your position 11 that this plaintiff injured his left elbow in this 12 motor vehicle accident? 13 A Yes. 14 Q Are you also aware that there was 15 evaluation at Recover Medical within five days of 16 the accident that showed completely normal range of 17 motion of the elbows? 18 A I am aware of this since you pointed out 19 to me. I did not have these records at the time in 20 my chart. 21 Q Do you agree that finding normal range of 22 motion of the elbows is a significant finding? 23 A It has nothing to do with nerve entrapment

24 to normal range of motion and still have entrapped 25 nerve.

KATZ - Cross/Scahill 34 1 Q Is that significant findings? 2 A For nerve entrapment, it's not 3 significant. Because you have normal range of 4 motion and still have a pinched nerve. 5 Q Do you know when was the first time he 6 complained of any problem with his elbow? 7 A From what I recall, because he had neck 8 surgery first, which kind of know us condition in 9 his neck. 10 Q I am sorry, that wasn't my question. 11 A The answer, no. I don't remember exactly 12 when he first -- 13 Q Do you know if he complained of any 14 problem with his elbow within a month of the 15 accident? 16 A I think was later than that. 17 Q Three months? 18 A I think was six months later. 19 Q Six months later was the first complaint 20 of a problem of the elbow; it's your position that 21 that problem was related to the accident? Is that 22 correct? 23 A That is correct.

24 Q I just asked you about your operative 25 finding with respect to the elbow. This surgery was

KATZ - Cross/Scahill 35 1 also done at New York Community Hospital, correct? 2 A Yes. 3 Q In your operative report, you made no 4 mention of a motor vehicle accident; is that 5 correct, Doctor? 6 A I don't recall the answer. But if you say 7 so. 8 Q This is your operative report. It says, 9 indication for procedure. Patient is a 54 year old 10 male who has persistent left hand weakness atrophy. 11 Patient had EMG and nerve conduction studies which 12 demonstrated an entrapment of the left e. You want 13 to describe the procedure that you did? There is no 14 mention of a motor vehicle accident? 15 A That is correct. 16 Q And if the motor vehicle was a competent 17 producing cause of this injury, you would list that 18 in your report; is that correct? 19 A That is incorrect. 20 Q You listed it as far as the other 21 procedures that you did. You never listed it for 22 this procedure? 23 A I don't always put the cause of the --

24 cause of the injury in the operative report. 25 Operative report merely describes what condition was

KATZ - Cross/Scahill 36 1 and what I did. 2 Q Why would you put in the shoulder surgery? 3 A Honestly, I just -- I forgot to put it in. 4 Q You forget? 5 A Forgot to put it in. 6 Q Didn't have anything to do with getting 7 paid for that procedure? You put down it was a 8 motor vehicle accident because you wanted to get 9 paid from that procedure? 10 A Under which report we're talking about? 11 Q The other two procedures, you put down 12 motor vehicle. Did you put that in the operative 13 report because you wanted to get paid? 14 A I put down because it's accurate 15 information. 16 Q There was no mention of trauma in your 17 operative report for the nerve entrapment surgery 18 you performed? You didn't say anything about trauma 19 as a cause of the condition; is that correct? 20 A That is correct. 21 Q And you can have those findings with or 22 without trauma; is that also correct? 23 A That is correct.

24 Q The surgery that you performed for his 25 neck, would you say that that was successful?

KATZ - Cross/Scahill 37 1 A Yes. 2 Q Would you say he's doing well? 3 A Yes. 4 Q Thousand surgeries you performed or have 5 performed over the last ten or 12 years, those are 6 people with or without lawsuits pending? 7 A Correct. 8 Q The surgery is to relieve pain? 9 A Yes. 10 Q And improve function? 11 A Yes. 12 Q And restore mobility? 13 A Correct. 14 Q And you did that with Mr. Vodoff, correct? 15 A Yes. 16 Q In fact, in January of 2010, he was able 17 to go back to work full duty with no restrictions? 18 A Think that is correct. 19 Q That is correct. You put that in your 20 report. 21 Would you consider Mr. Vodoff's case a 22 good outcome? 23 A I would consider it pretty good outcome.

24 Q You got the intended results from the 25 surgeries that you performed?

KATZ - Cross/Scahill 38 1 A Well, you have to understand. In spine 2 surgery, it's never one hundred percent recovery. 3 Usually if you get 80 percent pain relief, and you 4 get radiculopathy, that is considered success. 5 If you're able to get off pain medication 6 and get them back to work, that is a home run. 7 Q As I said, within five months of this 8 accident, were you able to get him back to work full 9 duty with no restrictions? Is that correct? 10 A That is correct. 11 Q Now, Doctor, I presume you're being 12 reimbursed for your time in court? 13 A Yes. 14 Q And you're being paid for today and for 15 last week? 16 A Correct. 17 Q What was your fee for appearance in court? 18 A My fee I think six and a half first date 19 and five today. Five thousand dollars. 20 Q And sixty-five hundred for the first day? 21 A Yes. 22 Q And five thousand dollars for today? 23 A Correct.

24 Q That is your normal fee when you come to 25 court?

KATZ - Redirect/Pfluger 39 1 A That is my normal fee. 2 Q Even if the testimony breaks out over two 3 days, you charge for the second day? 4 A Well, if it's -- it's per day, basically. 5 MR. SCAHILL: Thank you, Doctor. 6 No further questions, your Honor. 7 THE COURT: Any questions? 8 MR. PFLUGER: Yes, sir. 9 Thank you. 10 REDIRECT EXAMINATION 11 BY MR. PFLUGER: 12 Q Just heard a laundry list of one through 13 nine about whether this neck injury -- there is 14 something -- that he was living with or not, but 15 counsel didn't give you the last one, acute 16 herniation. 17 Now, is that significant in formulating an 18 opinion that the accident caused the herniation? 19 A Well, in my opinion Mr. Vodoff was working 20 full duty, he was asymptomatic up until the time of 21 accident. Whether we make decisions about 22 differential diagnosis, you have to take into 23 account not only what MRI shows the pictures. But

24 also the clinical situation. The history, the 25 physical exam and the pictures.

KATZ - Redirect/Pfluger 40 1 In fact, 90 percent of our decisions are 2 based on his history and the physical exam. Tests 3 are only used to either confirm or refute those 4 things in the differential diagnoses. 5 So Mr. Vodoff was working full duty. Had 6 no symptoms, asymptomatic up until the time of the 7 accident. And all his symptoms started shortly 8 after the accident. So in my opinion, yes. Does he 9 have degenerative condition? Of course. Fifty-five 10 year old man would have finding consistent with 11 arthritis of his neck. Any one of you, and myself 12 included, get MRI, we will see degenerative changes. 13 But all of us are asymptomatic. We don't have any 14 pain. After the accident, he became symptomatic. 15 So in my opinion, yes, sir, did have 16 degenerative changes, of course. But he became 17 symptomatic after the accident, and on that MRI I 18 saw one disk that was herniated. And was on the 19 right side was consistent with his numbness, 20 weakness and shooting pain down the arm. So in my 21 opinion, that was the main -- that was the real 22 cause of his symptoms, which is the herniation. Not 23 the degenerative changes, which is IDV.

24 Q Okay. And I said would worse. Acute 25 herniation. What does that mean?

KATZ - Redirect/Pfluger 41 1 A It means that herniated disk that -- 2 didn't develop slowly, it happened acutely. It 3 happened suddenly from some traumatic event. 4 Q So that is what counsel didn't give you, 5 is something to consider differential diagnosis. 6 And you went in and you performed the surgery and 7 you found an acute herniation, right? 8 A Yes. 9 Q Okay. So acute herniation, you told this 10 jury, was because of the accident, right? 11 A Correct. 12 Q Now, let's just go to the -- counsel was 13 talking about -- I'm just going to hand this up to 14 you (indicating). It's in the records. The MRI -- 15 because I don't have the benefit of the screen. 16 The one that was done April 20th, 2010, 17 and counsel spent sometime -- 18 A Yes. 19 Q And the word focal is in there, correct? 20 A Yes. 21 Q And there were findings of other 22 herniations, correct? 23 A Yes.

24 Q Now, when you went in and did that 25 surgery, did you find what was in that MRI report,

KATZ - Redirect/Pfluger 42 1 multiple herniation, or did you just find one? 2 A I just found one. The others were -- look 3 like you said, degenerative changes that did occur 4 over time, whether asymptomatic. 5 Q What I am saying to you. When you went 6 and opened him up, only find one herniation? 7 A That is correct. 8 Q Because counsel spent time saying, well, 9 if there is multiple herniations in degeneration, 10 correct? 11 A That's correct. 12 Q Remember him asking that. But you only 13 found one? 14 A Well, what I want to explain. The one 15 that was causing trouble, which was 5, 6, created 16 cord compression, which is what I had to relieve. 17 Which is causing the symptoms. The others were not 18 causing cord compression. Yes, usually have a small 19 protrusion or a bulge, which is asymptomatic, is not 20 pressing on any nerves. 21 Q Sir, the operative record that you 22 prepared, you wrote one herniated disk, right? 23 A That's correct.

24 Q So the questioning about multiple 25 herniations at different levels does not apply to

KATZ - Redirect/Pfluger 43 1 this particular individual because you found one, 2 correct? 3 A That's correct. I found one that was 4 symptomatic, that was causing his problem, and it 5 was focal. 6 A Yes. 7 Q And was acute? 8 A Yes. 9 Q And it was because of the accident, right? 10 A Yes. 11 Q You also spent some time talking about the 12 MRI of July 20, 2012. And asking about -- takes 13 years to develop certain findings. One of the 14 findings in that report? 15 A Well, here's spondylosis, which mean 16 arthritic changes involving C3, 4, and C4, 5 discs. 17 He also has mild posterior bulge at C6, 7, 18 which are all changes due to aging. 19 Q And a fair statement, did this accident 20 and surgery have anything to do with accelerated 21 degeneration? 22 Do you know what that means? 23 A Yes. When we did a fusion.

24 Q What happens to the person? 25 A When we do fusion of the spine, depending

KATZ - Redirect/Pfluger 44 1 upon how many levels we fuse, people lose range of 2 motion at that level. So roughly each level 3 serves -- does about ten percent of your total range 4 of motion in the neck. If you fuse one level and he 5 lose about ten percent motion. If you lose two 6 levels, 20 percent, so forth. 7 So what happens, after a while, since 8 some -- since normally you have five disks give you 9 motion, once you fuse one or two of them, the other 10 discs see more stress. They have to do the job of 11 the other two that are now not moving. So that 12 leads -- that can lead to what we call adjacent 13 level disease. We're talking about five or ten 14 years down the road, the discs are either above the 15 fusion or below the fusion can breakdown at a faster 16 rate. I believe what the term accelerated is 17 talking about. Adjacent level of disease of any 18 final fusion. 19 Q That MRI report dated July 20, 2011, does 20 that change your opinion as to what Mr. Vodoff's 21 spine was like before the accident? 22 A No. 23 Q Is the findings that are in that report

24 consistent with what would happen to a person his 25 age that went through that surgery where you did a

KATZ - Redirect/Pfluger 45 1 fusion and you put a cage in his neck? 2 A Yes. 3 Q Sir, counsel's shown you the Recover 4 Record, he was asking about radiating pain. Is that 5 the be all and end all of deciding whether someone 6 has a nerve impingement or a problem with a nerve in 7 the neck? 8 A No. 9 MR. SCAHILL: Objection to form, your 10 Honor. 11 THE COURT: I am going to allow it. 12 Q Why not? 13 A You can have other symptoms that indicate 14 nerve compression. 15 Q Like what? 16 A One is numbness. Weakness, tingling. 17 Clumsiness, in the hand, I am talking about. All 18 these indicate a pinch nerve in the neck. Radiation 19 is one of the symptoms. 20 Q That is not the only symptom. Nothing 21 stands or falls because the word nerve radiation is 22 there or not? 23 A Correct. It depends on the record. Who

24 wrote the record. 25 Q Do you know whether a doctor wrote that

KATZ - Redirect/Pfluger 46 1 record? 2 A That was my question. Was written by a 3 doctor, a nurse, a physician assistant or medical 4 assistant who circle those things. I am not really 5 sure. 6 Q Sir, when counsel showed you that blow-up 7 of the Recover Medical record, I saw the word 8 paresthesia in there, along with numbness and 9 tingling; what does that mean? 10 A Paresthesia is abnormal sensation. 11 Usually in the extremities. It's either diminished 12 or increased, and, again, it's a sign of nerve route 13 irritation. 14 Q And, sir, there was some testimony by 15 defendant's doctor, orthopedist, who said three out 16 of five grip strength may have some significance; do 17 you agree or disagree with that? 18 A I don't understand the context in which -- 19 what are you asking me? 20 Q Potentially if you had a herniated disk in 21 his neck, potentially would have affected his 22 ability to grip three to five? 23 A Yes.

24 Q Sir, I am going to show you -- and it's 25 coming out of Plaintiff's Exhibit 8, the Recover

KATZ - Redirect/Pfluger 47 1 record. This is the April 12th, 2010. Can you take 2 a look at that? 3 A Okay. 4 Q Now, could you tell us what the findings 5 were with reference to any complaints or findings? 6 Maybe I can help. Let me help you with 7 it. 8 A Look like chiropractors -- 9 Q It's dated April -- this is a record that 10 came out Recover Medical, it's dated April 12th, 11 2010. And it's circled -- it's circled in this 12 document, numbness and tingling. 13 Can you read the rest of it, sir? First 14 page? 15 A It says here patient's name, Eduard 16 Vodoff. Date, April 7, 2010. And, again, guess 17 present complaints. Headache, dizziness, neck pain, 18 numbness, tingling, pain numbness in -- I can't read 19 this. What is this -- 20 Q So having read this, look like "to 21 thighs". 22 Does that change your opinion as to 23 whether he sustained an acute herniation in his neck

24 as a result of the accident? 25 A No.

KATZ - Redirect/Pfluger 48 1 Q Does it assist -- if you saw this record, 2 would it assist you in forming an opinion that the 3 accident was a result that caused this injury? 4 MR. SCAHILL: Objection. 5 THE COURT: Sustained. 6 Rephrase. 7 Q What significance would this record have 8 if you had it in the beginning, if any? 9 MR. SCAHILL: Same objection. 10 THE COURT: Overruled. 11 A It would indicate to me that he, shortly 12 after the accident, was complaining of all these 13 things, including neck pain, numbness and other 14 signs of nerve compression. 15 Q I want you to assume that Mr. Vodoff also 16 told us that the first time he knew about the 17 accident, he had both hands on the steering wheel. 18 And that the first time he was aware of the accident 19 is after and during the impact and he described a 20 heavy impact. 21 What significance, if any, does that have 22 in assisting formulating an opinion that the 23 accident caused the herniation and shoulder injury,

24 if any? 25 A Well, if you have both hands on the

KATZ - Redirect/Pfluger 49 1 steering wheel at the time of the impact, you could 2 have some -- some force transmission to both 3 shoulders, and not only shoulders, but wrist, elbows 4 and so forth. That's my opinion. 5 Q And, sir, we have in the record, and that 6 would be Plaintiff's Exhibit 7, a report by a 7 Dr. John R. Denton, an orthopedic surgeon, dated 8 January 17th, and a report prior to that of Dr. John 9 R. Denton, November 22, 2010. 10 MR. SCAHILL: Judge renew my objection. 11 This is his own witness. 12 THE COURT: Objection is noted for the 13 record. 14 Q Sir, Dr. Denton, orthopedist who examined 15 Mr. Vodoff on January 17th, 2011, under causal 16 relationship. Based upon the history provided by 17 Mr. Vodoff and review of reports, there was a causal 18 relationship between the accident of record and 19 Mr. Vodoff's reported injuries. 20 Does that have any significance to you 21 that an orthopedist, as of January 17, 2011, found a 22 causal relationship? 23 MR. SCAHILL: Objection.

24 THE COURT: Overruled. 25 A Absolutely. This is doctor who did the

KATZ - Redirect/Pfluger 50 1 IME, independent medical examination, for the 2 insurance company who agreed with me, this was 3 causally related to the accident. 4 MR. SCAHILL: Judge, I object and ask that 5 be stricken. 6 THE COURT: I am going to allow it. 7 Q Under disabled, do you agree or disagree 8 with this finding? There was evidence a moderate 9 causally related disability. 10 A I totally agree with that. 11 Q Sir, you were asked some questions about 12 Dr. Elsoury, and I am looking at Defendant's Exhibit 13 8. From Recover Medical. There is a narrative 14 report dated November 24, 2010. 15 Sir, do you agree or disagree with Dr. 16 Elsoury's findings? As a direct result of traumatic 17 injuries sustained by the patient on April 7, 2010, 18 there were extremes of joint movements with 19 consistent stretching and tearing of muscle ligament 20 structures of the cervical spine and or affected 21 areas. 22 A Considering the patient's symptmology 23 results of comparative tests, examinations and

24 experience with similar cases, it is my opinion that 25 such weaknesses might predispose the areas affected

KATZ - Redirect/Pfluger 51 1 to further aggravation that might not have been 2 otherwise bothering the patient before the accident. 3 It is my opinion that these areas will be 4 permanently weakened, resulting in significant and 5 permanent restrictive mobilities. 6 In view of the nature of the injuries that 7 the patient sustained, there was partial permanent 8 disability and loss of function to areas affected by 9 trauma. 10 During the patient's last visit, he 11 continued to feel pain and discomfort at the site of 12 the injuries. The patient continues to demonstrate 13 signs and symptoms of residual inflammatory 14 pathology of muscular and supportive structures of 15 the spine. Right shoulder and other body parts. 16 Those -- there were some initial response to 17 physical therapy and manipulation, the patient does 18 report continuing pain. These injuries are subject 19 to remission and exacerbation. Pain within -- the 20 pain is more inclined to increase during daily 21 activity or inclimate weather and to some extent 22 fairly decreased -- fairly decrease with rest. The 23 injuries diagnosed above are causally related to the

24 accident of April 7, 2010 and have resulted in 25 permanence, partial and significant loss of use and

KATZ - Redirect/Pfluger 52 1 function to the areas injured. As quantified 2 objectively, and based upon the diagnosis test above 3 describe and clinical findings. Overall prognosis 4 for complete long term recovery is guarded. Do you 5 agree or disagree with that opinion, sir? 6 A I agree. 7 Q Okay. Now, before I forget. Counsel 8 spent time with you -- this is your chart -- you did 9 fully look at this one document that counsel spent a 10 lot of time on. And that's Plaintiff's Exhibit 13. 11 Now, counsel was talking about letterhead. 12 Is there a writing, a letter from that law firm -- 13 by the way. There is nothing wrong with lawyers 14 trying to help their clients get -- 15 MR. SCAHILL: Judge, I am going to object 16 to this. 17 THE COURT: Sustained. 18 Q Sir, looking at that, is any of that your 19 writing? 20 A It is not my writing, no. It's one of my 21 office staff. 22 Q Is there anything that is checked off, a 23 box about referred by anybody on there?

24 A No. 25 Q Could you look through the rest. Cause

KATZ - Redirect/Pfluger 53 1 there was something checked off where all of a 2 sudden a law firm is sending you a patient. 3 A There's -- I can't read this. On this 4 note, which is filled out by patient, something 5 here, referred by. I am not sure there is a 6 mistake. This is not my handwriting. I am not sure 7 patient handwriting. This note looks like they were 8 asking the case was open. They're looking for 9 insurance information. From the attorney. 10 Q So you can get paid? 11 A Correct. 12 Q Sir, is it violation of Canon ethics for a 13 law firm to send a person for treatment to a doctor? 14 MR. SCAHILL: Objection, your Honor. 15 MR. PFLUGER: I can ask -- 16 THE COURT: You may answer the question. 17 A Repeat the question? 18 Q Is it a violation of Canon of ethics for a 19 doctor and lawyer -- for a lawyer to say, please see 20 this patient? 21 A Not as far as I am aware. 22 Q You never been sanctioned, have you, for 23 doing that?

24 A No. 25 Q Do you know where Mr. Vodoff came from?

KATZ - Redirect/Pfluger 54 1 A I don't know. Looking at my record, I 2 don't -- usually there is a referring physician, I 3 would address a letter or my consult to the 4 physicians. But in this particular case, I do not 5 have that. 6 Q How many patients do you think you've 7 treated since 2010? 8 MR. SCAHILL: Judge, this is more for 9 redirect. I object. 10 THE COURT: Sustained. 11 MR. PFLUGER: He brought this up -- 12 THE COURT: I am going to allow it, then 13 we are going to move on. 14 A Repeat the question? 15 Q How many patients have you seen since 2010 16 or up to -- 17 A I see about a hundred patients a week, of 18 those probably one quarter -- about 25 new patients 19 a week. 20 Q So if you have -- 21 A I have to add that up and tell you. 22 Q You have thousands of patients, sir? 23 A Correct.

24 Q So how many of the thousands of the 25 patients do you need to see anybody -- does this

KATZ - Redirect/Pfluger 55 1 matter where they're referred to -- 2 MR. SCAHILL: Same objection. 3 THE COURT: I am going to allow it. 4 A Only reason -- it matters so I can basic 5 forward the report to them to let them know what my 6 opinion is. I'm specialist where treating doctor 7 who refer the patients to me, and I can let them 8 know what is going on with the patient. If I'm 9 planning surgery or not. 10 Also good way to remind them to send me 11 more patients. If I send them a letter after each 12 visit. 13 Q Sir, fair statement, you're not -- you 14 didn't see Mr. Vodoff because of anything -- or care 15 and treat him, correct? 16 A That is correct. 17 Q Sir, you were asked some questions, did 18 you bother to get any records from the other 19 doctors? Remember he was asking -- 20 A No, I did not. 21 Q Well, sir, I have a Dr. Khorets, and that 22 is the doctor that I want you to assume Mr. Vodoff 23 said, I saw him when I wasn't feeling well. I want

24 you to assume that he did not see -- go to this 25 office yearly. I'll show you records.

KATZ - Redirect/Pfluger 56 1 MR. SCAHILL: Judge, I am going to object. 2 This is improper redirect. He went through 3 this -- 4 MR. PFLUGER: Counsel brought it up. 5 THE COURT: I am going to allow it. 6 Q Sir, I am showing you Plaintiff's Exhibit 7 6. This is office visit dated 12/14/04. 8 Now, I want you to assume, sir, that the 9 records of Dr. Khorets and Dr. Bilik there was no 10 indication and no information about any complaints 11 of neck, shoulder or elbow problems or pain from the 12 time you first saw him. This office, beginning in 13 2004 or any time. 14 Do you see the part in that office visit 15 note where Dr. Khorets noted that the last time he 16 saw a doctor was 20 years before? 17 A Yes. 18 Q What significance, if any, does that have? 19 A Well, to me that means Mr. Vodoff is 20 pretty healthy guy. No symptoms of any type, and he 21 has not seen -- he is not type of person that goes 22 to doctor for no reason. And he's been pretty 23 healthy throughout -- all this time.

24 Q And, sir, I want you to -- showing you 25 March 24th, '08. I want you to assume that that's

KATZ - Redirect/Pfluger 57 1 the last time that Mr. Vodoff went to that office, 2 and there was a physical exam. A fair statement 3 that, according to that note, there was no problems 4 with his neck, shoulder or elbow, correct? 5 A Let me just read this -- 6 Q Yeah, go ahead. 7 A Neck exam. Supple, no JVD, no 8 thyromegaly, no lymphadenopathy. No masses. 9 Q Okay. Is that a normal physical? 10 A Yes. And also neurological exam, which is 11 completely normal. 12 Q What significance does that have -- 13 formulated opinion that the accident caused the 14 injury to his neck, shoulder -- 15 MR. SCAHILL: Objection. 16 THE COURT: I will allow it. 17 A Patient was asymptomatic. Meaning he had 18 no neck pain, no tingle, no numbness in his hands or 19 his neck before the accident. He was a healthy guy, 20 working full duty, with no symptoms. So in my 21 opinion, that supports my opinion that the accident 22 was causally related to his injuries. 23 Q And spurring is -- you found spurring in

24 the shoulder? 25 A Yes.

KATZ - Redirect/Pfluger 58 1 Q Do you agree with the defendant's 2 orthopedist that spurring may be dramatically caused 3 -- 4 MR. SCAHILL: Objection. 5 THE COURT: I am going to allow it. 6 A There are lots of people walking around 7 with spurring. Which could be asymptomatic. Could 8 be part of degeneration. However, sometimes it can 9 be symptomatic after a traumatic event. So it could 10 be both. 11 Like counsel said, differential, but if 12 asymptomatic, we don't operate on these people. 13 Only if it becomes symptomatic, then it's something 14 that we would do something about. Like do surgery. 15 Q For all of us. Holding a steering wheel 16 with both hands, and now he has limitation in his 17 ability to use his right shoulder. How is that 18 causally related -- 19 MR. SCAHILL: Objection. 20 Q -- to the accident? 21 THE COURT: I am going to allow it? 22 A Well, basically it is -- I wasn't there at 23 the accident. But if you're telling me he was

24 holding both hands at the time of impact, which he 25 was rear-ended, you could have forced

KATZ - Redirect/Pfluger 59 1 transmission go through the whole arm and through 2 the shoulder. Thereby injuring him. 3 Q And if asymptomatic before, and now it's 4 symptomatic, your conclusion is? 5 A That it's causally related. 6 Q Sir, counsel just read from your trial 7 testimony, I just want to follow-up on it. At page 8 65, line 18: 9 "But would you agree that EMG tests was a 10 part of the diagnosis? 11 Answer: I disagree because EMG testing is 12 a subjective test. It's not like an MRI where 13 you see pictures. EMG is an extension of an 14 exam of the doctors who's doing it. So it's 15 essentially as good as a doctor who's 16 performing that test." 17 Do you remember giving that answer? 18 A Yes, sir. 19 Q You stand by that answer? 20 A Yes, I do. 21 Q And page 66, line 17: Counsel asked you 22 this question -- 23 MR. SCAHILL: Judge, this is his own

24 witness, and this is redirect. I don't 25 understand how reading testimony --

KATZ - Redirect/Pfluger 60 1 MR. PFLUGER: You brought up the -- 2 THE COURT: I'll allow one more question, 3 then we are going to move on. 4 Q 5 "So can you also agree that if the EMG 6 within two months of the accident, has no 7 finding of acute herniation that this was not 8 an acute herniation to this cervical spine? 9 It's yes or no. 10 "Answer: I do not agree." 11 You stand by that answer? 12 A Yes. 13 Q And, sir, do you agree that according to 14 Dr. Montalbano, the defendant's orthopedist, who 15 admittedly is not a spine surgeon like you, who says 16 in an EMG you might have a false positive, you might 17 have a false negative; do you agree with that? 18 A Yes. 19 Q And he also acknowledge and admitted that 20 MRI you might have a false positive, you might a 21 false negative; do you also agree with that? 22 A Yes. 23 Q Is it also a fair statement, sir, that the

24 best way to diagnosis a herniation, an acute 25 herniation, you found in Mr. Vodoff's neck was when

KATZ - Recross/Cahill 61 1 you look at it? 2 A Well, that would prove or disprove any 3 MRI. 4 Q There's nothing better than your two eyes, 5 is there? 6 A No. 7 MR. PFLUGER: Thank you. 8 THE COURT: Any further questions? 9 MR. SCAHILL: Thank you, your Honor, just 10 a few questions. 11 RECROSS-EXAMINATION 12 BY MR. SCAHILL: 13 Q Doctor, you talked about the history being 14 90 percent of your diagnosis? 15 A Yes. 16 Q Do you recall that testimony. 17 MR. PFLUGER: I didn't bring that up. 18 THE COURT: I am going to allow it. 19 Overruled. 20 Q The history that Mr. Vodoff gave to you is 21 listed in your report here. History of the 22 accident, correct? 23 A Yes.

24 Q Was that accurate? Is that truthful? Are 25 you aware?

KATZ - Recross/Cahill 62 1 A This is what he told me. 2 Q May have lost consciousness for a few 3 seconds or minutes. He had pain the next day. 4 MR. PFLUGER: He said he did not recall. 5 MR. SCAHILL: Excuse me. 6 THE COURT: Counselor -- 7 MR. PFLUGER: He is leaving out the good 8 part. 9 THE COURT: Counsel, I am going to 10 overrule. 11 Let's be accurate with the questions. 12 Q I am reading specifically from your 13 report. Went to his Primary Care Center for 14 Physical Therapy. Was all that accurate? 15 A Apparently not. 16 Q Not now that I did not -- he did not go to 17 a primary care physician? You know he didn't lose 18 consciousness? 19 A I don't know. This was what my record 20 says. This is what he told me at that time. 21 Q And he doesn't drink or smoke, that wasn't 22 accurate either? 23 A That is --

24 MR. PFLUGER: Objection. 25 THE COURT: Sustained. Last statement

KATZ - Recross/Cahill 63 1 stricken from the record as well as the 2 question. 3 Q This is what he told Dr. Senat. This is 4 different history that was given to you; is that 5 correct? 6 MR. PFLUGER: Objection, Judge. This is 7 beyond -- 8 THE COURT: Sustained. 9 Counsels, approach. 10 (Whereupon, there was a 11 discussion held off the record.) 12 THE COURT: Please continue. 13 Q Suffice it to say, the history that Vodoff 14 gave to you, which you said formed 90 percent of 15 your diagnosis, was inaccurate; is that yes or no? 16 MR. PFLUGER: Objection. 17 THE COURT: I am going allow it. I am 18 going to allow it. 19 A I would say no. 20 Q Now, your opinion that you just voiced to 21 Mr. Pfluger when he was asking you about the 22 correlation between the auto accident and how 23 Mr. Vodoff injured his shoulder or injured his neck,

24 that is speculation; isn't that correct? 25 A Correct.

KATZ - Recross/Cahill 64 1 Q And, in fact, Mr. Vodoff said the seat 2 belt restrained him, and he did not indicate in his 3 testimony that he had a hypertension or hyperflexion 4 of the neck? 5 MR. PFLUGER: Objection. That is not the 6 testimony. 7 THE COURT: Sustained. 8 Q I'd like you to assume, Doctor, that when 9 Mr. Vodoff testified, he indicated that his seat 10 belt restrained him, and he did not strike any part 11 of the inside of the car? 12 A He had no hyperextension, hyperflexion 13 injury to -- extension to his neck. He had no 14 trauma to his arms or to his shoulders. Your 15 testimony as to how these injuries occurred is pure 16 speculation; isn't that true, Doctor? 17 MR. PFLUGER: Objection. That is not -- 18 THE COURT: Sustained. 19 Q All of the hypotheses that you're putting 20 before this jury, that's how he possibly could have 21 gotten injured; isn't that pure speculation? 22 MR. PFLUGER: Objection. 23 THE COURT: I am going to allow the

24 question. 25 A Yes.

KATZ - Redirect/Pfluger 65 1 MR. SCAHILL: Thank you. 2 No further questions. 3 MR. PFLUGER: Just briefly, Judge. Just 4 briefly. 5 REDIRECT EXAMINATION 6 MR. PFLUGER: 7 Q Sir, I want you to assume that Mr. Vodoff 8 testified that he had both hands on the wheel, and 9 he was hit, heavy impact, his head went back and 10 forth. I want you to assume. Based on that 11 testimony that he told us what happened to him and 12 that he fell, like he blacked out for a second, does 13 that have any significance to you, sir? 14 A This is all speculation. But, yeah. 15 That -- I wasn't there. I don't know -- 16 Q I am telling you what he said. His head 17 moved back and forth, does that have any -- did this 18 assist in formulating an opinion that the rear-end 19 impact caused -- 20 A That's usually mechanism of injury for 21 herniated disk. 22 Q So that's not speculation if he tells you 23 that he told the jury that?

24 A Yes. 25 MR. PFLUGER: I am almost done, Judge.

KATZ - Redirect/Pfluger 66 1 Q Sir, your initial orthopedic consultation 2 that counsel put up there. It was written, the 3 patient states that he may have lost consciousness 4 for a few seconds or minutes, he did not recall? 5 A Right, he wasn't sure if he was consicous 6 or not. 7 Q Counsel didn't read that to you. 8 He also -- 9 MR. SCAHILL: Object to that, your Honor. 10 THE COURT: Sustained. Stricken from the 11 record. 12 MR. PFLUGER: I withdraw it. 13 Q He did not go to the hospital, but the 14 next day developed neck pain and shooting pain down 15 the arms associated with numbness and tingling in 16 his hand. You did write that, right? 17 A Yes. 18 Q What significance does that have? 19 MR. SCAHILL: Object to this, Judge. 20 THE COURT: I am going to allow it. 21 A It means that before the accident he had 22 no symptoms. And symptoms developed shortly after 23 the accident. Within a day or two. To me that is

24 the whole key for -- to me that means that the 25 accident was causally related to his injuries.

KATZ - Redirect/Pfluger 67 1 MR. PFLUGER: Thank you. 2 THE COURT: Doctor, you may step down. 3 (WITNESS EXCUSED) 4 THE COURT: Counsel, approach. 5 (Whereupon, there was a 6 discussion held off the record.) 7 THE COURT: Ladies and gentlemen, we are 8 going to break for lunch. We will return at 9 2:15. And we'll continue with the trial. 10 (Jury Excused) 11 THE COURT: Counsel for the defense, 12 please. 13 MR. SCAHILL: Judge, during the testimony 14 of Dr. Katz, plaintiff's counsel again used the 15 report of Dr. Delman to bolster the testimony 16 of his witness. And Dr. Katz, in response, 17 indicated that that is the IME doctor for the 18 insurance company. 19 It was improper to allow Mr. Pfluger to 20 use that report to bolster the testimony of his 21 own doctor. 22 The testimony of Dr. Katz, in response, 23 said that this was, quote, an IME doctor for

24 the defendant's insurance company, is extremely 25 prejudicial to the defendant in this case, and

KATZ - Redirect/Pfluger 68 1 based on the statement before the jury, I 2 submit that the jury is irrevocably tainted and 3 the defendant hereby request a mistrial based 4 on that improper use of Dr. Delman's report and 5 Dr. Katz' statement in response that that was 6 done for the insurance company. 7 THE COURT: Counselor? 8 MR. PFLUGER: Judge, that is something 9 that I didn't anticipate. All I was using 10 that, because it is in evidence, to ask whether 11 that would affect his opinion. 12 You can give a curative charge that 13 anything to do with insurance is irrelevant. 14 It has been done many times. 15 I did not pursue it and follow-up on it. 16 I left it alone. It was harmless error, Judge. 17 THE COURT: Motion for a new trial is 18 hereby denied. We are moving forward. 19 (Whereupon, there was a luncheon 20 recess at this time, following 21 which Michele Walker was 22 relieved by Diane Hughes as the 23 official Senior Court Reporter.)

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