SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS : CIVIL TERM : PART CSCP X JOSE RIVERA, Plaintiff,

Transcription

1 0 0 SUPREME COURT OF THE STTE OF NEW YORK COUNTY OF UEENS : CIVIL TERM : PRT CSCP X JOSE RIVER, LLOYD LMPELL, Plaintiff, -against- Index No. 0/ JURY TRIL Defendant X Supreme Courthouse - Sutphin Boulevard Jamaica, New York March, 0 B E F O R E: THE HONORBLE MRTIN E. RITHOLTZ, J U S T I C E P P E R N C E S: FINKELSTEIN & PRTNERS ttorneys for the Plaintiff South Road - Route Wappingers Falls, New York 0 BY: BRIN D. CRD, ES. CHRISTOPHER CMSTRO, ES. PICCINO & SCHILL, P.C. ttorneys for the Defendant 00 MERCHNTS CONCOURSE - SUITE 0 WESTBURY, NEW YORK 0 BY: FRNCIS J. SCHILL, ES. EILEEN GNOLETTO Senior Court Reporter

2 Lubliner, MD - Plaintiff - Direct J E R R Y L U B L I N E R, MD, called as a witness by and on behalf of the Plaintiff, after having been first duly sworn, was examined and testified as follows: THE CLERK: Please be seated. In a loud, clear voice, please state your name and business address. THE WITNESS: Jerry Lubliner. THE CLERK: Please spell the two names. THE WITNESS: J-E-R-R-Y, L-U-B-L-I-N-E-R, East rd Street, New York, New York THE CLERK: THE COURT: MR. CRD: DIRECT EXMINTION BY MR. CRD: Thank you very much. You may inquire. Thank you, your Honor. Good afternoon, Dr. Lubliner. Good afternoon. Just before we get started, that address that you just gave us, is that's your business address? 0 It is. Doctor, are you duly licensed to practice medicine in the State of New York? nd since when? December of 0. Can you tell the jury a little bit about your

3 Lubliner, MD - Plaintiff - Direct educational background? Sure. I went to Syracuse University. I graduated Summa Cum Laude in. That is the same year I started 0 medical school in New York at State University graduating June of 0. In July of 0, I started an internship at Beth Israel Hospital in Manhattan for general surgery, graduating June of. In July of, I started a four-year residency program in orthopedic surgery at the New York University Hospital for Joint Diseases, graduating June of. fter graduating, I did postgraduate training in Canada called a fellowship. There I trained with the Olympic team doctor and I was the team doctor for the Toronto Blue Jays and some other teams. I came back to New York in '. In ', I took part one of the test to be board certified to the merican cademy -- merican Board ssociation; I passed. In I took part two, 0 which is a written exam, and then I became board certified in ' after passing the requirement, one of which is to be in training for two years. Presently I teach and have privileges at Beth Israel Hospital in Manhattan and the NYU Hospital for Joint Diseases where I do surgeries at both institutions. In orthopedic surgery you have to take a board every ten years, you have to be retested, so I was retested in

4 Lubliner, MD - Plaintiff - Direct and in 00. Lastly, in 00 the boards came out, first time, with the secondary board of sports medicine where you vetted, take a test, and I passed, so now I am board certified in orthopedics and sports medicine. Just so we're clear, Doctor, you have a specialty? My specialty is orthopedic surgery. Okay. nd you mentioned that you are board certified? Correct. Can you just explain in a little more detail what that 0 means to be board certified? Board certification is the highest level you can attain in your field. Not every doctor is board certified. First you have to pass an accredited program. Then you take a test and they circulate your name to make sure you keep your nose clean and thing likes that. Then after a couple of years, if you do certain things correctly, they grant you board certification. It's a privilege; it's not a right. re you a member of any professional associates? 0 Sure. The merican Board of Orthopedic Surgeons. I mentioned merican cademy of Orthopedic Surgeons and the rthroscopic ssociation of North merican, to name a few. nd do you do any type of teaching? Sure. I teach anatomy every other Thursday at NYU or Beth Israel. nd do you have surgical privileges?

5 Lubliner, MD - Plaintiff - Direct Yes, at both institutions. t which one? t both institutions. nd do you actually perform surgery? I do. What type of surgeries do you do? Orthopedics. ll forms? Orthopedics is the branch of medicine that deals with 0 the arms, the legs, and the spine, the back. ny time you have a problem with a broken bone, called a fracture, a herniated disk, like you have today, a ruptured ligament, a torn cartilage, you go to an orthopedic surgeon. them? nd you have your own patients that you treat? Of course. nd what type of medical problems do you treat with Pain in the legs, pain in the arms, or fractures, 0 herniated disks, disk bulge, ligament rupture, rotator cuff, things like that. Now, before today have you ever been recognized in any courts in the State of New York as an expert in your field? I have. On about you how many occasions? In life? bout 0 times.

6 Lubliner, MD - Plaintiff - Direct nd that's all in New York State? One or two in Jersey. How often during a given year do you testify in court? bout once a month. nd do you offer -- Do you ever offer opinions for defendants as well as plaintiffs? In addition to treating your own patients, Doctor, are 0 you asked from time to time to do orthopedic examinations for people who are involved in lawsuits? involve? On a consultation basis? nd when you do that type of thing, what does that It involves -- it's like a second opinion for surgery. 0 It involves seeing a patient, taking a history, doing a physical examination, reviewing images, reviewing medical records, and then coming to a conclusion, coming to an opinion. There are subtle differences between a defense exam and a plaintiff exam, but that's just at the end of it to talk about causality? nd were you asked to do that in this case? Of course, that's why I'm here. nd that was with regard Jose Rivera?

7 Lubliner, MD - Plaintiff - Direct 0 nd did you receive a fee for reviewing the records and examining Jose Rivera? bsolutely. nd writing the report? bsolutely. Do you know what that fee was? My standard fee is $00. 0 today? nd are you receiving a fee for your time here in court nd are you missing time with patients today as a result of being here? I rescheduled my patients twice actually for this case, and I would have been seeing patients today this afternoon had I not been here. here? nd what is the fee that you are receiving today to be My fee for preparation for the case, for coming here 0 and giving testimony to people is $,00. nd is that the standard fee that you give for court time no matter whether you are testifying for plaintiff or defendants? Correct, for a half a day, yes. Now, in this case when did you do an examination of

8 Lubliner, MD - Plaintiff - Direct Jose Rivera? February, 0. nd, by the way, did you bring a chart or file with you on Mr. Rivera? I did. nd is that with you? here. It's in my lap. There's really not that much room Is that the records that you reviewed in the course of 0 your examination? Yes, there's more on a disk in the back. I didn't print out everything. nd does referring to your chart assist you in refreshing your recollection for anything? So feel free to review that as we go along. With regard to Mr. Rivera's evaluation that you did in February, I believe, can you tell me what it is that you reviewed? Sure. Well, I reviewed the various documents called bill of particulars which state the injuries from the accident, I reviewed MRI reports, and I actually reviewed the images of the MRI for his neck and back. I reviewed treatment records by

9 Lubliner, MD - Plaintiff - Direct doctors that he saw, Dr. Kubiak, Dr. Morris. I reviewed treatment records by Dr. Sebastian Lattuga, who operated on the cervical spine and lumbar spine, and I reviewed postop reports and for treatment. I also reviewed treatments for previous accidents where he injured his neck and back, and he had at least three accidents, ', 00, and 00 prior to the 0 accident. Do you know what -- Do you know specifically what 0 records you reviewed for the prior accident? with you? Do you have that I do. Okay. Can you tell us what records those were? I reviewed medical records of Dr. Steven Ravich, R--V-I-C-H, Steven, S-T-E-V-E-N. He saw the patient in and for treatment to the neck and back. I reviewed a police accident report for an accident //0. I reviewed medical records of Dr. Scott ndrews from City Care in 00. reviewed medical records of Dr. Eric, with a C, Elowitz, I 0 E-L-O-W-I-T-Z, spine surgeon, 00. of Primary Health Care Plus 0. I reviewed medical records I reviewed electrical studies performed by Dr. Narkhede, N--R-K-H-E-D-E, taken February th of ' showing that the patient had bilateral L-S radiculopathy. I reviewed a cervical spine MRI taken at Doshi Diagnostic on // showing protrusion at disk C- and C-.

10 Lubliner, MD - Plaintiff - Direct I reviewed another MRI report from Doshi Diagnostic December, ' showing herniation L-S. I reviewed a second MRI of the cervical spine report dated //0 taken at Doshi Diagnostic showing significant right paracentral forward slash foraminal herniation at L-S creating impingement. Doctor, one of the records that you read off that caught my attention was with Dr. Eric Elowitz a spinal surgeon you said that Mr. Rivera consulted 0 with in 00? Do you have that record? Do you have his report? I do. Okay. nd did you review that report? nd when you reviewed that report, did Dr. Elowitz 0 state anything with respect to whether surgery was necessary? MR. SCHILL: Objection. That's not in evidence. MR. CRD: ctually, it is. It is part of the Met Life records. THE COURT: MR. CRD: In evidence, I'll allow it. It's in the Met Life records. MR. SCHILL: I'd like to see it.

11 Lubliner, MD - Plaintiff - Direct THE COURT: Subject to connection. Yes, the record is dated March, '0. nd he talks about the herniated disk at L-S and states: I will not recommend any surgery for this patient. I feel that much of his low-back pain is related to a lumbar muscular sprain, although there is a herniation to the right. The right leg symptoms are only a general small component, and his low back pain is the most disabling feature. I recommend anti-inflammatory 0 medication and he may want to consider a formal trial of physical therapy. So there was no surgery recommended? Correct. For the back in March of 00? Correct. nd did the review of your records -- Were there any other spinal surgery consultations that you're aware of before July, 0? 0 No. Now, you told us about the prior EMG as well? Can you tell us a little bit about that, about the findings on that? It showed nerve irritation down in his spine. nd what year was that? '.

12 Lubliner, MD - Plaintiff - Direct? I don't remember the date in February, but I remember it was February '. If I said February,, would that be about right? nd did you see any other EMGs that were taken of Mr. Rivera after February of? Before ', no. 0 Correct. So after reviewing -- Well, what did you learn from Mr. Rivera's history? He had accidents where he injured his back and neck. He had two herniated disks, one in his neck, one in his back, but he went back to work after every one except for the accident of //. You know, you can go through medical records and it's like a detective going through the evidence box. You have 0 to speak to the patient because they are like the eyewitness to bring everything together, so without speaking to a patient you just have various studies and the patient brings it together. Now, what you'll hear from me soon is we are going to go over the operative report. It's very important. In fact, when you have surgery, the most important medical record there is is the operative report because that's when the surgeon sees exactly what is wrong. Okay? So he had herniated disks before. He had irritation of the root. He had irritation by the MRI -- by, excuse me, the

13 Lubliner, MD - Plaintiff - Direct EMG, but he got better. He went back to work. He went back to work in ' and also all those other accidents. In fact, sometimes he got confused about how many accident he had, but, in any case, he was working on the date of the injury on // and went back to work after all these accidents. He had in the 0 late 000s and early 0 very little treatment for his back, okay. So now we jump forward to // and he has this accident. nd that's what I'm going to ask you about next. Did you then review the history of Mr. Rivera's treatment following the July, 0 accident? Of course. nd what did that include? To be brief, he had a car accident. He was the driver with an air bag. He was wearing a seat belt, air bag was deployed. Went to two hospitals because one was really busy, so he treated at Mercy Hospital. Then on the th of July he went to a private orthopedic surgeon, Dr. Paul Kubiak. Dr. Kubiak 0 examined him and said he had neck and back pain and said he wanted to get new MRIs so he got new MRIs to his neck and his back. MRIs. Now, Doctor, you mentioned before that you reviewed the Not only the report, but this one I reviewed the images

14 Lubliner, MD - Plaintiff - Direct themselves. past? nd you have experience reviewing MRI films? Sure. nd that is something you've done many times in the Do it every time I'm in the office. Doctor, I'm going to -- This has already been admitted into evidence. This is Plaintiff's Exhibit. You might need to come down off the chair. 0 MR. SCHILL: ll right if I step up? THE COURT: Is this the MRI of Mr. Rivera's lumbar spine that -- the film? Yes, that I reviewed, yes. Can you explain to the jury what is going on here in Sure. Before I do that can I explain what an MRI is? Yes, absolutely can. n X-ray is a beam that goes through your body and then it gets dispersed by calcium and metal, so soft tissue, meaning 0 disk and nerves and everything, are invisible to it. But an MRI comes off water molecules and every living thing has water so you can see not only the bone but the soft tissue, too. When I say soft tissue, anything but bones is called soft tissue. your body, you have soft tissue and then you have bone. In When you look at an MRI, and they take 0 cuts which

15 Lubliner, MD - Plaintiff - Direct you don't have to look at. What we did is we selected two of the best cuts so you can see. This is a side-view called the sagittal view where you are looking just like so at the patient. You can keep going. nd when you look here you look at bone, which is here. This is the disk. Now, if you look at the disk you see a dark part and you see a whiter part, all right? The dark part is called the annulus and the inner part is called nucleus, and the annulus holds the nucleus in behind it. You see the spinal 0 cord, okay, and then you see the nerve roots, these black things break approximating off. Now, if you look at L- you see a normal-looking disk. L- you see a normal-looking disk. When you look at L-S you see that, one, the bone is not aligned in a straightforward manner, and, two, there is a disk here hitting the spinal canal. Okay? That's the side-view. Now, in is called the axial view, axial is looking straightforward down. So if you take like white bread and you cut it up and then you look down, you take a piece out, take a 0 piece out, that is what you're looking at. You are looking down. Here you are looking at the side, and what this thing shows is this is the spinal canal, and right here, this is the bone, and right here is the disk going into the spinal canal, so he had surgery for this particular problem. Doctor, I'm just going to put up what has also be

16 Lubliner, MD - Plaintiff - Direct marked into evidence as Plaintiff's Exhibit. Right. So I have reviewed these before I came here to make sure they were correct. The artist is demonstrating what's going on. You can see over here you have the nice looking disk here. This is the posterior longitudinal ligament here. The disk is coming out and it is digging into the spinal sack. you see here is that the nerve roots are being a little bit compressed by the disk. What Doctor, I now want to show you what has been marked 0 into evidence as Plaintiff's. I'm going to move this. Is that the cervical spine MRI of Jose Rivera? So, again, you have a side-view called the sagittal view, and that's looking like this. This is an anatomically correct model of the cervical spine. You can see the brain would be here. You are looking down, just like so, and between levels of C and C you can see disk herniation. Herniation is about the size of a pencil eraser. They are not 0 usually huge, but there is no space for them, that's the problem. You can see here, you can see bone. This is the posterior longitudinal ligament. When the disk is pushing on the posterior longitudinal ligament it is called a bulge. When it actually gets through the posterior longitudinal ligament it is called a herniation. Here you can see it is obviously through and this white, the fat, and that is the spinal cord from the brain. You can see

17 Lubliner, MD - Plaintiff - Direct 00 how it's impinging on the fat into the cord, and you can see on the axial the same thing, that you have impingement on the cord from the disk. Now, Doctor, I just want to show you what's been already marked into evidence as Plaintiff's. This is an artist's representation of what you just saw. Here is the disk herniation. Here is the spinal cord. You can see impingement. nd, by the way, that was confirmed at the time of surgery, where the doctor saw there was spinal cord 0 compression. nd you can see the axial views, that's again looking from the top, and this is the sagittal view looking from the side. ll right. Thank you, Doctor. Why don't you have a seat. I'll remove these. THE COURT: uick sidebar. (Whereupon, at this time a discussion was held sidebar.) Doctor, I believe you mentioned that you reviewed MRI reports from as well? 0 Now, were you able to review those films? No. Why is that? They weren't given to me. Would films normally be available?

18 Lubliner, MD - Plaintiff - Direct 0 MR. SCHILL: Objection. THE COURT: I'll allow it, I'll allow it. Usually medical records are destroyed between six and seven years. nd you also reviewed the report from 00, I believe? nd was that actual film available for your review? No. Now, before you said you reviewed the overall treatment 0 Mr. Rivera received before he had surgery; is that correct? I reviewed what was presented to me. I never know if I get every single medical record, but I review treatment records. Can you tell us about the treatment he received before having the surgery? He got a lot of medication and physical therapy before the accident of July, '. He didn't have any surgeries. nd at some point was Mr. Rivera referred to a surgery? 0 Dr. Kubiak, who was treating him from Island Musculoskeletal Care, sent him to see Sebastian Lattuga of New York Spine Surgeons. surgery? nd do you know if Dr. Lattuga eventually performed Of course I do, and he did. Did he perform surgery? He performed two surgeries. He performed a fusion of

19 Lubliner, MD - Plaintiff - Direct 0 the lumbar spine in July of '. Then his partner, in September of ', tried epidural injections of the neck. That is putting steroid right into the spine. It didn't work so he performed a cervical fusion in November of 0. Can you tell us a little bit about what an epidural injection is and what that involves? What happens is sometimes when nothing works and you still don't want to have surgery, they try to stick a needle in your neck or your back right in the spine and push steroid 0 through so the steroid will deflame the inflammation. You have to do this under fluoroscopy, which means you are watching it as you're doing it because you want to get the right level. But for the neck it means that you get prepped and draped, and then they stick in a needle under X-ray guidance into the area they want. They stick it all the way in and when they get to where they want they actually put two cc's. about this much fluid in the hope that will decrease the inflammation. It's 0 nd is that done under anesthesia? Well, local, not general. nd in this case do you know how many injections Mr. Rivera had? May I look? He told me he had four to the back and one to the neck.

20 Lubliner, MD - Plaintiff - Direct 0 Now, in your review of Mr. Rivera's records, was there any indication that he had ever had any type of epidural injections before July, 0? No, he did not; he told me so. nd what leads a doctor to attempt to use an epidural injection? In other words, what are the patients -- what is the 0 patient's situation? Well, you try to do that to relieve pain, okay. So when you are treating a patient you do the easy things first. tell my patients it's like walking up a ladder and every step I you take it gets harder. restriction of activity. First is medication, physical therapy, If that doesn't work then we might start with a brace. People don't like braces, but it may be necessary. If that doesn't work then we are thinking narcotics. Then if that doesn't work then you start sticking needles in. If that doesn't work then you go to surgery. 0 nd so in this case did the epidurals work? No. nd the surgeries were performed, correct? Correct. Now, you mentioned earlier that you had read operative reports, I believe? cervical? You read both operative reports for his lumbar and the

21 Lubliner, MD - Plaintiff - Direct 0 Can you just explain to the jury what the purpose of an operative report is? fter a surgeon performs surgery, he's required to 0 dictate a note to document exactly what he did so there is a record of exactly what he did, because not only will the surgeon, after you perform thousands of surgeries forget exactly what you did on every patient, but if another doctor wants to know what is going on they read the report, and that is a requirement across the world that you do that. nd you reviewed both reports? Of course. Do you know which was the first surgery that Mr. Rivera had? Yes, of course I do. Which was that? The lumbar spine, //. 0 n are you familiar with this type of surgery, Doctor? Of course. I'm probably going to ask you to step down again and move everybody around. I have a question for you. THE COURT: MR. CRD: Referring to which exhibit now? I'm sorry, Judge, it is Exhibit in evidence.

22 Lubliner, MD - Plaintiff - Direct 0 Doctor? ll right. Do you have a copy of the operative report, You have one on the board. Excuse me? You don't have one on the board? I do not have a large copy of the operative report. So could you explain to the jury -- First of all, can 0 you tell me what this overall shows in general? Okay. Basically what it shows is the procedure by an artist, okay, and it's like showing pictures of what happens. You are seeing the first view of the back, but before you get there you have to put the patient on his elbows and his knees. You have to have the belly loose; you can't compress the belly. You put special holders that keep the patient in that position, okay. Obviously it's an electronic table so you get the proper height you want. They adjust you. Where the scar was made -- Now, I measured the scar to be nine sonometers, which is about four inches. The operative 0 report said six inches, but a measure is a measure so, you know, must have got a little smaller by the time I measured it, but first you make an incision and then you start what is shown here. You make the incision. Here is the fat and here's the fascia, and you're using a retractor to hold it away so the surgeon has a little field. Now, the surgeon always has a

23 Lubliner, MD - Plaintiff - Direct 0 helper spraying the area for blood and doing cautery, which means getting all the bleeders. You want you dry field to work in. What they are showing here is that in order to get -- Let me get my model. (Whereupon, there was a brief pause in the proceedings.) In order to get to the disk, you have to do what is 0 called a laminectomy, and that is to take away bone because the spinal cord and the nerves are very important and the body surrounds them by bone, okay. If you look at the spaces allotted for each nerve root, if you have a disk herniation, even though it is the size of a pencil eraser, it's pinching the nerve and that creates pain. So what you see here now is the doctor starts to burr out the bone. This is the lamina, the disk is what is behind it, and he's burring the bone to get to the disk herniation, right? Then when he gets to the disk herniation he removed it. Now I want to read from the operative report, if I may, because this is really important. //, Surgeon Sebastian 0 Lattuga, pre-op diagnosis, herniated disk at Long Island Jewish Hospital, instability examination, paraparesis and neurological deficit. Okay, before ' he never had a neurological deficit. MR. SCHILL: Objection, your Honor. There's no basis to give that opinion. THE COURT: Just use the word objection.

24 Lubliner, MD - Plaintiff - Direct 0 Sustained. Lay a foundation. Doctor, before you proceed and explain that to the jury, can you tell us, based on your history, whether the neurological deficit had been present before? It had not. It was never documented before '. MR. SCHILL: Objection, your Honor. THE COURT: I'm going to allow it. 0 Okay. Proceed with your explanation. He takes out the disk. Let me tell you, and I'm reading from the operative report itself, and I'm seeing here intraoperative findings consistent with herniated nucleus pulposis and associated with translational instability causing direct nerve root compression as a result. So what he found is after he took out the disk that the bones were unstable so he had to fuse it, meaning he had to take out the bone that was unstable and put in new bone. That's called a graft. Takes the graft from local areas and takes the graft from other areas, and that's what he did. So right now he's mobilizing the nerve roots, he's 0 removing tissue. nd if we go to the next, this is a fancy word, I'll explain it. He decorticates the lateral borders, the posterolateral. This is like taking a car and making a convertible. You are taking out a bunch of bone, okay, because the bones, it's causing a problem. So in order to provide stability he's got to put bone,

25 Lubliner, MD - Plaintiff - Direct 0 i.e. metal elsewhere, and he takes the graft and puts it on the outside. Why? Because the inside was compressed. He doesn't want compression on the inside. He puts it on the outside, but he also has to put in metal so it doesn't move to allow the bone graft to heal, and that's what it looks like. He has metal, screws, couplets and rods. This is what it looks like when you are looking straightforward and this is what it looks like on the lateral. 0 This is Plaintiff's Exhibit in evidence. Okay, so anyway, this is what it looks like on the lumbar side with the screws, cutlets and the rods to hold everything together so the fusion can take. twelve months to heal. Fusion takes six to re the rods and screws permanent? nd they don't come out? Sometimes they come out. If it's causing a problem, sometimes they move a little bit, sometimes they get scar tissue and the nerve gets pinched, but we try not to take them out. 0 Based on your review of Jose Rivera's history, his medical history, the medical charts and the operative reports, do you have an opinion with a reasonable degree of medical certainty as to whether this surgery was the proper course of treatment? Yes, it was, it was medically necessary. Dr. Lattuga

26 Lubliner, MD - Plaintiff - Direct 0 documents the instability and direct nerve compression as well as paraparesis. Those words don't come from me. They come from the treating doctor. They come from the operative report. The judge wants me to move along and so I'm just going to ask you, did you also review the operative report for the cervical surgery? explain. Yes, so let's just show the end result and I'll Well, I have the boards here that show the surgery. 0 This is the Plaintiff's in evidence. surgery took place? Now, before we get to that, can you tell us when that November, '. nd was that performed by Dr. Lattuga? Okay. nd can you explain the surgery that took place? gain, you are making an incision in the neck. This time it's in the front of the neck. You can see he made an 0 incision, goes down, takes away the tissue, finds herniated disk, okay? I'm reading from the operative report now, intraoperative findings. Central disk herniation at C- with cord compression, meaning it was not only herniated, it was impinging on the cord, okay. So you can have a herniation that doesn't bother you if it is not hitting a nerve, but this

27 Lubliner, MD - Plaintiff - Direct 0 herniation was hitting the spinal cord so that's why he did the surgery and that's what he found, this herniation here. So he took out the herniation and again you do a fusion, okay, so that the bones don't slide, and that's what he did here. Can I have the next? This is Plaintiff's 0 in evidence. nd he put a plate and screws and a graft to hold everything in place while the bone -- the new bone has to heal, 0 and that is a looking at it from the side after he's done. is a fusion. This He loses the movement at that level, but the movement was causing a lot of pain, so you have to make a choice, pain or movement, so he takes out the movement at that level to take out the pain. nd, Doctor, we're up to Plaintiff's Exhibit -- Oh, okay, fine. That's the final X-ray. Those screws are permanent? You know one thing. You know I'm in a rush here. You have the vocal cords right there. You have the carotid 0 artery, veins and nerves, right? This, in fact, if you go like this to your neck you'll feel a pulse, so, you know, part of the operation is to move that out of the way before do this. You go in the skin, you move that out of the way, hold it together nicely. Nerves don't like to be touched. Then you do your operation. So there are enemies in the way of this operation

28 Lubliner, MD - Plaintiff - Direct which you have to move out of the way in order to do it correctly. Now, Doctor, just so we are clear, this is the X-rays of both to cervical and the lumbar spine after the surgery? front. back. My far right is the cervical, which is the stuff in the My near right is the lumbar, and you see this is in the This is in the front, this is in the back. Now, once this surgery gets done, can this area of the lumbar spine where these screws are move? 0 No. Will that ever move again? No. nd what about the area where the screws are in the cervical spine, will that ever move? 0 That area doesn't move. nd will that ever move again? No. Okay, you can sit down. Thank you. Doctor, these surgeries that you just discussed, do they result in pain going away? Well, that's why you do it, and you hope that by taking out the disk and taking out the abnormal motion the pain goes away. In this case did the pain go away for Jose Rivera?

29 Lubliner, MD - Plaintiff - Direct MR. SCHILL: Objection. MR. CRD: THE COURT: I'll rephrase it, your Honor. Doctor, you did a physical examination of Jose Rivera at some point, correct? Yes, //. nd can you tell me what he told you, if he had any physical complaints at that time? He had complaints of neck and back pain. You know, we 0 try to get the patient to give you a number, zero to ten. I tell them zero is no pain whatsoever, ten is the worst pain you can possibly imagine. The pain in the neck was six out of ten. The pain in the back was seven out of ten. helped a little. He said that the surgeries Okay. But now your examination was after both surgeries were performed, correct? Yes, correct. nd as part of your history, did you ask Jose if he had 0 been experiencing any pain immediately prior to the July th crash? He said he was not. Can you tell us a little bit about your examination of Jose's cervical spine? I took his height and weight. He was ',. He had

30 Lubliner, MD - Plaintiff - Direct a three sonometer incision of the neck, which is a little over an inch, and I took his range of motion. range of motion of his neck. He had some loss of Now, on the neck you grade motion in four directions. Going back is called extension. Going forward is called flexion. Going side to side is called lateral flexion, and then 0 you have lateral rotation. So, if you can hit your chin to your chest that's 0 degrees, which is normal; he can go 0. If you can go back and look up at the ceiling that's about 0 degrees, which is normal; he had 0. Okay, lateral flexion is 0 degrees is normal, which is going like this, and he can go 0 to the left and 0 to the right. nd lateral rotation, which is normally 0, he can go 0. This is about 0, this is 0. I checked both arms; they measured equally. his nerves in the upper arms; they were normalized. I checked He didn't have any radiculopathy, meaning the nerves weren't pinched on the exam. I asked him to do gripping on the right. He can do 0 on the left,. That is about normal, that is about equal. Then I checked his back. He had a nine-centimeter vertical scar, which is about four inches that I measured. You know, if you measure it in extension it's less, if you measure it bent it more, so I measure it into extension. He could flex 0. Flexion is the ability to bend your

31 Lubliner, MD - Plaintiff - Direct back forward. Normally it's 0 to 0; he can go 0. He could extend 0; normal is 0. Lateral flexion 0, normal is 0, and laterally rotate 0, normal is 0 to 0. He was limited by pain. He complained of pain when I stretched his sciatic nerve on both sides, okay? His measurements for his legs were about equal; he didn't have atrophy. Then I examined his knees. He had pain on his right knee. Now, you just mentioned the range of motion exercises test that you did. What did those findings mean to you? 0 Well, you know, when you have a fusion you lose motion. You have to lose motion when you have a fusion because you are taking out the motion at that level. When you bend forward, most of the motion is L-, L-S, so he had a fusion. When you move your neck and rotate it, a lot of it is at C-, so he had a fusion. having a fusion you have permanent deformities. So just by He has scarring. He has metal. He has loss of motion at the sites of the fusion. Now, Doctor, do you know what the terms subjective and 0 objective mean? Of course. Can you explain for the jury what the difference is between subjective and objective? Yes, I'll start with objective because it's easier. Objective is something you can see. I just showed you a picture

32 Lubliner, MD - Plaintiff - Direct of an X-ray. That's something you can see. You can see the screws. Nobody can say that there's five screws because you saw four screws. That is subjective. nything you can measure, like a piece of paper / X, that's subjective. Something you can't measure or see is called subjective, meaning you are taking the story. When a person gives you a history, that's subjective. They are telling you a story. Can't measure it. When a person tells you their pain level, I can't measure it. You can sit next to the patient, you 0 can't feel their pain, you can't measure their pain. subjective. That is Doctors are trained to take the patient at their word. Eight out of ten, I write down eight out of ten. Subjective is something you hear, but can't measure or see. something you can see. Objective is nd the range of motion tests that you told us about, are they subjective or objective? Well, they can be subjective if a patient has no reason 0 to have the loss of motion, but here part of it, at least, is objective because we know he had a fusion, so if he had a fusion he can't have full range of motion. re the range of motion tests an accepted form of testing in the orthopedic field? Even if they are subjective, why are they done?

33 Lubliner, MD - Plaintiff - Direct Well, because, you know, you try after surgery to regain the patient's motion as best you can so you keep on measuring it to see how he's doing, okay? You start off at 0 degrees, maybe go to 0 degrees, maybe go to 0 degrees. You have to have some way to know. You can't eyeball it because that leads to mistakes. You keep on measuring it. It's the best we can do. It's not exact, but it's the best we can do. Now, Doctor, you mentioned some earlier changes in Jose's spine. Did he have preexisting changes in his spine? 0 You mean before //? Correct. bsolutely. Can you talk to the jury a little bit in layman's terms about what that means? Okay. So he had a herniation in his neck and his back prior to this accident. He went back to work every time. The key here is what Dr. Lattuga said. In addition to the herniation, he had direct nerve root compression in the back and he had cord compression in the neck. That's what caused the 0 need for surgery. There is no question he had the herniations before, but there's no evidence he had the direct nerve root compression or the cord compression because if he did it would probably be really hard for him to go back to work. That is what I'm talking about, the story, the story that's integrated with the medical records.

34 Lubliner, MD - Plaintiff - Direct So you can have a lot of people walking around with disks that bother them a little bit or not so much so they live with them. That's what he did for many, many years. But then he had this accident and immediately he had pain and immediately he didn't go back to work. The most important thing is, we talked about subjective. In this particular case, an operating surgeon with his own eyes found the objective reason; he saw. Remember I 0 said if you see it it's objective? He saw the problem. Not only was it herniated, it had compression on the nerve and that's why he needed surgery. nd, Doctor, I believe you also mentioned there was instability found in the spine as well. In the lumbar spine there was instability, too. Is that significant? nd can you explain why? Instability means it moves in places it shouldn't, which you don't find on a picture, an MRI, because if you take a 0 picture they tell you to hold still, you're not moving. But at surgery the surgeon moves things around to see if it holds. He found it doesn't hold. In addition to the cord compression, instability of the cervical spine. To get back to the changes we were talking about before, you mentioned that he had herniated disk, Jose had the

35 Lubliner, MD - Plaintiff - Direct herniated disk before. Yes, ' he had a herniated disk. nd do herniated disks go away? They can. nd the mere fact that somebody has a herniated disk, does that mean that they are walking around in pain? No. I just mentioned you can have a herniated disk and it's not touching a nerve, you may be okay. You know, there are herniations in the belly called ventral herniations. They don't 0 hurt because there's no disks there, there are no nerves there. The reason you have surgery is the doctors are afraid it will get caught and incarcerate. It is not that painful, just weird looking. But in the back you have the nerves, so a herniated disk the size of a pencil eraser, if it pinches it's going to hurt. If it doesn't pinch it may not hurt. Now, when someone has pain in the back from a disk, can that pain go away without surgical intervention? Under what circumstances? 0 Disks desiccate, that means sometimes they shrink. If they shrink they are not as big so they don't open, and then they may get bigger again if you have another accident, you have another accident and they hit a nerve, which happened in this case. Now, can you tell me in your professional opinion what

36 Lubliner, MD - Plaintiff - Direct percentage of the adult population is walking around with degeneration in their spine? What age? dults in their forties. You start getting degeneration in your spine, and the studies show if you take X-rays of people who have no pain whatsoever, you'll find at age 0, 0 percent will have degeneration. t age 0, 0 percent will have degeneration. t 0 age 0, 0 percent will have degeneration. they have a pinched nerve. That doesn't mean Doctor, can you tell the jury what the terms symptomatic and asymptomatic mean? Symptomatic means you are painful. symptomatic means you're not painful. Now, based on the history and the records you reviewed and your exam of Jose Rivera, do you know if, based on those records, do you know if Mr. Rivera was symptomatic or asymptomatic prior to July, 0? He told me he was asymptomatic prior to July, ' for 0 many months. Okay. nd what did that mean to you, if anything? He was getting along. nd now what is trauma? Should I continue?

37 Lubliner, MD - Plaintiff - Direct 0 Trauma is an injury. I'm sorry? Injury. Okay. nd any form of injury? (Whereupon, the following was recorded and transcribed by Official Court Reporter Laura Paro.) (Continued on next page.) * * * * * 0 0

38 Dr. Lubliner - Direct - Plaintiff DIRECT EXMINTION CONTINUED BY MR. CRD: Can trauma in any way cause an asymptomatic condition to become symptomatic? bsolutely. Under what circumstances? Circumstance like this. You have a herniated disk, it's not hitting a nerve, you get trauma, it moves a bit because 0 they do move. nerve. It's living tissue and all of a sudden it hits a Doctor, can you explain to the jury what the term exacerbate means? To make worse. Doctor, based upon your review of Jose Rivera's records, do you have an opinion with a reasonable degree of medical certainty as to whether or not the crash of July, 0 exacerbated the preexisting changes we just discussed? MR. SCHILL: Objection. THE COURT: I'll allow it. 0 What is that opinion? It did. What is that based on? Based on the history. Based on the fact that he went to the emergency room. He had immediate pain. He went to the

39 Dr. Lubliner - Direct - Plaintiff doctors. He had immediate pain from July,. He never went back to work. changed. nd from the history after July, his life Doctor, based upon Jose Rivera's medical history and records that you reviewed, as well as your examination, do you have an opinion within a reasonable degree of medical certainty as to whether or not Jose would have needed the surgeries you described if the crash of July did not take place? MR. SCHILL: Objection. 0 THE COURT: Overruled. He had those operations in 0. If he didn't have the incident, accident in 0 he wouldn't have needed the surgery in 0. I don't know if he would never need the surgery. He might have if he had a different accident, but we're talking about this accident. He was getting along, walking around, working for Verizon, driving a car for many years and then after that, boom, that means the boom exacerbated his previous existing condition and made a situation that was not painful painful. 0 Do you have an opinion as to whether or not the crash of July, 0 is the competent cause of the pain Jose is experienced since that date? MR. SCHILL: Objection. THE COURT: Overruled. It is.

40 Dr. Lubliner - Direct - Plaintiff What is that based on? Based on the history, physical examination and review of medical records and the findings at the surgery. Doctor, do you have an opinion with a reasonable degree of medical certainty as to whether Jose has a permenant injury to his neck? Of course he does. Why is that? He has metal in his neck, he has a fusion. That's the 0 definition of a permenant injury. It's not like he had a spasm, you had physical therapy and it goes away. Do you have an opinion within a reasonable degree of medical certainty as to whether he has a permenant injury to his lumbar spine? Yes, he does. Same answer. He has a fusion, he has metal. He has scarring and loss of motion. THE COURT: MR. CRD: THE COURT: Is that it? Just about, your Honor. Keep going. 0 Doctor, do you have an opinion within a reasonable degree as to Jose's future prognosis with respect to his neck and back? When a doctor is asked to give a prognosis they give the prognosis a year after the surgeries. are supposed to get your result. fter the year you

41 Dr. Lubliner - Direct - Plaintiff Now, he had the surgeries in, I didn't examine until February of. I examined him months after the first surgery and months after the second surgery, months, and he still had these problems. Like I said, pain is subjective, he said he had pain, but he had the metal in his neck, metal in his back, he had the scarring and loss of range of motion. When you have that more 0 than a year after the surgery that means you have a permanent deformity. You have a permenant condition. That doesn't mean every day you are in pain taking narcotic medications, but it means that you never forget about it. It will always come back to you if you move the wrong way or overdo it. Doctor, do you have an opinion with a reasonable degree of medical certainty as to whether the injuries Jose Rivera sustained in the July, 0 crash limit his ability to sit? Based on his history, yes. What is that opinion? He did not give me a history of difficulty sitting. Doctor, what I'm asking is, based on his history, do 0 you have an opinion as to whether, to a reasonable degree of medical certainty, as to whether these injuries would affect his ability to sit for an eight hour period of time? They should, yes. They should. nd do you have an opinion as to whether these injuries, and do you have an opinion with a reasonable

42 Dr. Lubliner - Direct - Plaintiff degree of medical certainty, as to whether these injuries would affect his ability to stand for long periods of time? It would. 0 Doctor, I want you to assume at the time of the July, 0 crash Jose Rivera's job required him to climb telephone poles and ladders on a daily basis and required him to carry objects more than pounds -- I'm sorry, did you say or 0?. Do you have an opinion with a reasonable degree of medical certainty as to whether or not Jose Rivera has been disabled from doing that job since the time of the crash? What is that opinion? He is. nd based on what you just told us previously on his prognosis, do you have an opinion as to whether Jose Rivera will remain disabled from doing that job? MR. SCHILL: Objection. 0 THE COURT: s to form. Rephrase. Do you have an opinion with a reasonable degree of medical certainty as to whether Jose will remain disabled from doing that job? MR. SCHILL: Objection. THE COURT: I'll allow it. We also didn't talk about his medications.

43 Dr. Lubliner - Direct - Plaintiff I'm sorry? His medications. Was he on medications? nd he was on medication. He was taking Tramadol and Flexeril, and those things are muscle relaxers and those things affect your mind and make you sleepy. So if you are taking that you can't be doing driving or operating heavy equipment. Doctor, do you have an opinion with a reasonable degree 0 of medical certainty as to whether Jose Rivera sustained a significant limitation of use of a body function or system as a result of the July, 0 crash? My opinion is he did. nd do you have an opinion with a reasonable degree of medical certainty as to whether or not Jose Rivera sustained a permenant consequential limitation of use of a body organ or member as a result of the July, 0 crash? My opinion is, he did. Doctor, very briefly, I just want to ask you, have you 0 ever heard of the term secondary gain? Of course. Can you briefly explain what that means? Secondary gain is when you lie about your symptoms for something else. It's used in these cases when people come to Court because they say if you said you weren't so sick you would

44 Dr. Lubliner - Direct - Plaintiff get less money. But when you talk about secondary gain, this guy had major surgeries to his neck and back and people don't have major surgeries -- MR. SCHILL: Objection. I ask that that be stricken. THE COURT: Sustained. You asked one question. He's beyond that. MR. CRD: Right. 0 Thank you for explaining secondary gain. Is secondary gain something you would you take into consideration when examining Mr. Rivera? Did you reach a conclusion to a reasonable degree of medical certainty with respect to whether secondary gain was at play here? What's that opinion? My opinion is that you don't have major surgeries to your neck and back and fusions just for secondary gain. You 0 have to have pain. His pain was documented by his doctors. Not only that, the reason for the surgery was very well documented. s I told you, Dr. Lattuga, when he went into the neck and back. Here are the objective findings confirm the subjective complaints. MR. CRD: Thank you, doctor.

45 Dr. Lubliner - Cross - Plaintiff THE COURT: Cross examination. MR. SCHILL: I need a minute to set up. THE COURT: Okay. MR. SCHILL: May I look through his chart? given to counsel. THE COURT: Yes, please. Let's have the chart MR. SCHILL: Thank you, your Honor. THE COURT: You may proceed. 0 CROSS-EXMINTION BY MR. SCHILL: THE WITNESS: Can I have my notes back? Doctor, do you have a financial interest in this case? No. The page that's on top of your notes it's called an assignment of benefits; correct? Can you read the second paragraph of the assignment of benefits that's in your file? I authorize and direct my attorney to deduct and 0 immediately pay Jerry Lubliner such fees that may be due and payable from the assigned moneys that may come into my hands and my attorneys' hands and any recovery resulting from any claim or lawsuit. You saw Mr. Rivera not as a patient, but as a legal consultation; correct?

46 Dr. Lubliner - Cross - Plaintiff Of course. Now, you never prescribed any medications for him? That's correct. Correct? Correct. You never prescribed a course of treatment for him? He already had the treatment. He had stopped treating at the time he came to you? He wasn't treating with me. I wasn't the treating 0 doctor. He had a surgeon. You said he wasn't getting any treatment, he had stopped treating at the time he came to you? He already had his surgeries. t the time that he saw you a year ago in February of 0 he had stopped treatment; is that an accurate statement? I'll tell you in one second. He was no longer under any active treatment a year ago when you saw him in February of 0? 0 Correct. Now, you saw him once at the request of his lawyers; is that correct? It is. nd that was in anticipation of you testifying in this case on his behalf? Of course, that's the way it goes.