469 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - CIVIL TERM - PART 29 2 ----------------------------------------------X GUSTAVO VIDALS, 3 PLAINTIFF, 4 -against- 5 ISAAC RUBINFELD & RIVKA WEISS, 6 DEFENDANTS ----------------------------------------------X 7 Index No. 16794/11 360 Adams Street 8 TRIAL Brooklyn, New York December 6, 2013 9 10 B E F O R E: 11 HONORABLE WAYNE P. SAITTA, 12 Justice 13 14 A P P E A R A N C E S: 15 HILL, ROSENBERG & THURSTON LLC Attorneys for the Plaintiff 16 26 Court Street Brooklyn, New York 11242 17 BY: ROBERT C. ROSENBERG, ESQ. 18 LEWIS, BRISBOIS, BISGAARD & SMITH LLP Attorneys for the Defendant 19 77 Water Street New York, New York 10005 20 (212)232-1300 BY: ALAN KAMINSKY, ESQ. 21 -AND- DAVID B. DATNY, ESQ. 22 23 24 ELLEN DOHERTY NERI, CSR, RPR, CRR 25 SCR-SUPREME COURT, KINGS COUNTY Dr. Merola - Direct 470 1 THE CLERK: Case on trial continued, Index 2 Number 16794/2011, Gustavo Vidals against Isaac Rubinfeld 3 and Rivka Weiss. 4 OFFICER: Judge, they are all here. Bring them 5 in? 6 THE COURT: Yes. 7 OFFICER: All rise. 8 (Jury enters the courtroom.). 9 THE CLERK: Case on trial continued. 10 All parties are present. 11 All jurors are present. 12 THE COURT: Good morning, members of the jury. 13 Now we continue with plaintiff's case. 14 Mr. Rosenberg. 15 MR. ROSENBERG: Thank you. 16 Plaintiff calls Dr. Merola. 17 DR. A N D R E W M E R O L A called as a 18 witness, having been first duly sworn, was examined 19 and testified as follows: 20 THE CLERK: Thank you. 21 Have a seat. 22 In a loud, clear voice, please state your name 23 and business address. 24 THE WITNESS: Andrew Merola, 567 First Street, 25 Brooklyn, New York, 11215. Dr. Merola - Direct 471 1 M-E-R-O-L-A. 2 THE COURT: Okay, Mr. Rosenberg. 3 DIRECT EXAMINATION 4 BY MR. ROSENBERG: 5 Q Good morning, Doctor. 6 A Good morning. 7 Q Doctor, you and I have met before, have we not? 8 A Yes. 9 Q How many times? 10 A Once. 11 Q And do you remember how many years ago it was? 12 A I want to say within the last couple of years or 13 so. 14 Q Doctor, I'm calling you doctor but tell us are you a 15 doctor? 16 A Yes. 17 Q And what type of doctor? 18 A I'm an orthopedic spine surgeon. 19 Q And are you licensed to practice medicine in the State 20 of New York? 21 A Yes, I am. 22 Q And how long have you been so licensed? 23 A Since 1992. 24 Q Can you tell the jury what your academic 25 accomplishments are? Dr. Merola - Direct 472 1 A Sure. 2 So, I attended medical school at Howard 3 University in Washington D.C. 4 After medical school, I came to the State 5 University of New York, here in Brooklyn, Kings County 6 Hospital, Downstate Medical Center, where I did an internship 7 in general surgery. 8 I then did a four-year residency in orthopedic 9 surgery. 10 After I finished at the State University, I went 11 to the University of Colorado, in Denver, for a one-year 12 fellowship in spinal reconstructive surgery. 13 Q Tell the jury what is a fellowship? 14 A A fellowship is generally a year after you finished 15 your training in your specific specialty, in my case orthopedic 16 surgery, whereby you then concentrate on one specific area of 17 the body, and only that particular area. 18 And for me it was spinal surgery. 19 After I finished that fellowship I came back to 20 New York. 21 I went back to Downstate Medical Center to teach. 22 And I also started a private practice here in both Brooklyn and 23 Manhattan. 24 Q Doctor, do you have hospital privileges at any 25 hospitals, and if so, what are they? Dr. Merola - Direct 473 1 A Yes, I do. 2 So I have privileges to admit and treat patients 3 at Mount Sinai Hospital, New York Hospital, and also at SUNY 4 Downstate Medical Center. 5 Q Doctor, in say the past year, if you could do it that 6 way, or any other way you could do it, can you give the jury an 7 idea of how many surgeries you performed? 8 A Sure. 9 So my practice is orthopedic surgery for the 10 spine. 11 That is the neck and the back. 12 And I take care of both children and adults with 13 neck and back problems. 14 I operate several days a week. 15 And my associates and I would say I do probably 16 in the neighborhood of about 200 to perhaps 275 surgeries per 17 year. 18 Q And are all those surgeries to the neck and the back? 19 A Yes. 20 Q And can you give the jury an idea of if you can, of 21 the, to break it down, no pun intended, between the neck and 22 the back? 23 A Sure. 24 I would say it's, they're almost equally split 25 between the cervical spine; that is, the neck area, and the Dr. Merola - Direct 474 1 lower back area. 2 Every once in a while we also do some surgeries 3 on the mid back. 4 And because I also do children I also do 5 deformity surgery, which is surgery for curvatures and other 6 types of deformities you may be born with. 7 I say if you divided between neck surgeries and 8 low back surgeries, it's almost about 50/50. 9 Q In order to be here today, what did you have to do 10 with your schedule? 11 A So, I basically cancelled my schedule for today. 12 Generally, Fridays are a day where I see patients 13 in my office. 14 So, I'm out of the office and I'm here in court 15 today. 16 Q And what is your pay; what are you being paid to 17 taking you away from your office today? 18 A So, my reimbursement for my time away from the office 19 is $650 per hour. 20 Q Doctor, can you tell the jury, approximately, the 21 surgeries that you perform, are they, are you alone or are you 22 with other people? 23 How does that work? 24 A So, in general, when I'm operating on the spine, I 25 usually work with some associates, that is another spine Dr. Merola - Direct 475 1 surgeon, who helps me during the surgery. 2 Your spine, although you have only one of them, 3 there is a right side and a left side to your spine. 4 And I always work with an assistant who is also 5 another board certified spine surgeon, so you basically have 6 four eyes and two sets of hands doing the operation; it makes 7 it safer, and faster, and improves your outcomes. 8 Q Doctor, in terms of testifying, can you give the jury 9 an idea of how often you come to court to testify? 10 A So, I generally find myself coming to court about 11 three to four times per year. 12 Q And who is it that you are testifying for? 13 A So, and when I do come to court, I testify for those 14 patients I've had an opportunity to treat and take care of. 15 Q Doctor, earlier in your career, have you ever been 16 called as an expert by any governmental agencies? 17 A Yes. 18 Q Tell the jury who. 19 A So, for the United States government, I have done some 20 testimony, and some reviews for the United States. 21 Q And with respect to spine? 22 A Yes. 23 Q Doctor, did there come a time when Mr. Gustavo Vidals 24 came to your care, or for an evaluation? 25 A Yes. Dr. Merola - Direct 476 1 Q Can you tell the jury when that was? 2 A So I initially saw Gustavo in July 2011, July 15, 3 2011. 4 Q And at that time when he came first off, do you know 5 how he made his way to you; in other words, did someone refer? 6 A Mr. Vidals had come in as a referral from his treating 7 physiatric medicine doctor. 8 Q By the way, record-keeping in your office, is it hard 9 copies kept; is it all on computer, then you have to print out 10 what you need? 11 A So, what we've done is over the last several years, 12 we've been switching over to electronic medical records. 13 Any hard copies that come in get scanned in and 14 go into an electronic records system. 15 And then if I have to send my records out or 16 bring my records to court, for example, I then print those 17 records from the electronic system. 18 Q When Gustavo Vidals came to you, did you speak with 19 him? 20 A Yes. 21 Q By the way, do you speak Spanish? 22 A Yes, I do. 23 Q Fluent? 24 A Yes. 25 Q Did you need an interpreter to talk to him? Dr. Merola - Direct 477 1 A No. 2 Q And how did you converse with him; was it in English 3 or Spanish? 4 A We conversed in Spanish. 5 Q Doctor, can you tell us what was -- and by all means 6 you can look at your records if you have to, what history did 7 you get from Mr. Vidals? 8 A So, there was a history of trauma secondary to a car 9 accident. 10 And that accident happened in April of 2011. 11 He had been doing what's known as conservative 12 treatment that is nonsurgical treatment, whereby, things such 13 as rest, modifying your activities, antiinflammatories and 14 muscle relaxants and physical therapy, with things such as 15 therapeutic exercise and modalities to try to decrease 16 symptoms. 17 So he had been doing that since about April or 18 so. 19 His physical therapy doctor then referred him 20 over to me, because of increasing pain, particularly in his 21 neck, with somewhat, we call radiating symptoms into the arms 22 and hands. 23 Radiation means that there is pain travelling 24 down into the arms and hands coming from the neck area. 25 So he had come in because of that and he was Dr. Merola - Direct 478 1 actually quite concerned about the fact that this had gotten 2 worse, and was going into the arms and hands. 3 Q And in terms of history, was there anything that you 4 were able to obtain that happened to Mr. Vidals in his past, 5 any priors that he told you about, or anything of that 6 nature? 7 A He didn't have any significant, what we call "past 8 medical" or "surgical" history other than having had an 9 arthroscopic surgery to his right knee. 10 Q And that was in June of 2011. 11 Correct? 12 A Correct, yes. 13 Q Doctor, what is the next thing you did when you saw 14 Mr. Vidals? 15 A So, the complaints and symptoms that he had, I tried 16 to correlate those with a physical examination. 17 So when a patient gives you some, what are known 18 as subjective symptoms, about what they going on you try to 19 correlate, or try to match those with what is going on in your 20 body. 21 And in this case, because we have pain coming out 22 of the neck, with radiating pain into the arms and hands, the 23 issue at hand is whether or not they have a nerve root problem, 24 or a spinal cord problem in their neck that's causing these 25 symptoms. Dr. Merola - Direct 479 1 So, doing a physical examination to assess those 2 nerve roots gives you an idea of whether or not those roots are 3 having a problem. 4 So that's the next step, is to correlate the 5 symptoms with an exam. 6 Q Doctor, if I could give you this model and ask you to 7 tell the jury what it is, and if you could use that to assist 8 you in showing the jury how the nerves correlate? 9 A Sure. 10 So, this is a plastic model of the spine. 11 And we're looking at it from the side. 12 And as we're looking at it from the side, we see 13 the white pieces of plastic are the vertebral bodies. 14 And in many ways, they look, kind of look like 15 squares from the side, with these little ridges behind the 16 squares. 17 And in between the vertebral bodies we see these 18 yellow, what appear to be wires coming out of this model. 19 And those yellow wires are the actual nerve 20 roots, themselves. 21 And those nerves travel out of your neck area, 22 and then they travel down into your arms and your hands. 23 And so they supply your ability to feel, in your 24 arms and your hands, the reflexes that control muscles in your 25 arms and your hands, and your ability to use and manipulate Dr. Merola - Direct 480 1 your arms and hands. 2 The roots come out of a larger collection of 3 nerves called the spinal cord. 4 So the spinal cord is that portion of your brain 5 that carries all of the cables that go into the nerve roots. 6 And that spinal cord area is inside of the 7 cervical spinal canal, which is the area where the bones and 8 the discs that connect the bones to each other, are located. 9 Q Doctor, after examining him, what is the next thing 10 you did with Mr. Vidals? 11 A So, when I examined him there were two nerve roots 12 that had a problem with the reflexes that they control, and the 13 sensation that they controlled. 14 And I had an opportunity to look at an MRI films 15 that he had brought in, that had been obtained with his prior 16 treatment. 17 And I looked at the film, and I ordered a new MRI 18 in order to get a better picture of what the anatomy in his 19 neck was, because of that dysfunction that I saw in those nerve 20 roots. 21 So my plan at that time was, having seen him, 22 came up with what's known as a diagnosis, or a problem: Which 23 we call radiculopathy or problem with the nerve roots, and the 24 plan was for a repeat imaging study to better look at the area 25 where those nerve roots are. Dr. Merola - Direct 481 1 Q What is the next thing you did? 2 A So, after I had done that, and he was able to get the 3 new MRI, brought him back to the office, so I could then 4 correlate those MRI findings in the anatomy in that MRI, with 5 what we call "clinical" or "real-time" physical, anatomical 6 problems. 7 Q Did you make any recommendations to him at that 8 point? 9 A Yes. 10 So, at that time, when I looked at the new films, 11 the films were significant for disc herniations. 12 And that is, when we talk about a disc what we're 13 talking about the areas of the spine that are in between the 14 bones. 15 And the disc is a structure that is made up out 16 of cartilage. 17 So it's softer than bone, spongier and more 18 flexible than bone, not unlike the cartilage that you can feel 19 in your nose or in your ear. 20 And it's very much put together like a jelly 21 donut, if you could imagine that. 22 There's softer, more liquidity cartilage on the 23 center that would be like the jelly. 24 And there is a more fibrous or tougher or more 25 elastic cartilage around the outside. Dr. Merola - Direct 482 1 And that's what is known as the anulus or the 2 ring. 3 So those discs were herniated; that is to say, 4 there were portions of those discs that were broken off to the 5 point where they were encroaching upon the spinal canal, that 6 is where the spinal cord is, and where the nerve roots are. 7 Q What is the significance of that? 8 A So that being able to correlate the anatomy of the MRI 9 images with nerve root problems can focus your attention onto 10 what we call an anatomical problem, or anatomical lesion that's 11 responsible for that patient's physical findings. 12 So that's important in terms of what your next 13 step in treatment can be. 14 Q Doctor, with a reasonable degree of medical certainty, 15 if this existed before this car accident, would someone have to 16 seek medical treatment? 17 A So -- 18 MR. KAMINSKY: Objection. 19 THE COURT: Sustained. 20 Leading. 21 Q Doctor, can you explain to the jury this finding that 22 you saw, what the significance of that is, with respect to 23 time? 24 A So, with respect to time, when you see discs leaning 25 on nerves that are producing problems, you have a patient that Dr. Merola - Direct 483 1 has complaints and symptoms of pain and difficulty using, in 2 this case, their arms and their hands, because of the problem 3 with those nerve roots. 4 Significant to the point whereby that interferes 5 with your ability to perform your normal activities. 6 Q What is the next thing you did for Mr. Vidals? 7 A So, based on nerve root disc function; that is, nerve 8 roots that were not functioning properly with evidence of nerve 9 root irritation and compression at that point in time, because 10 there are two specific areas involved, and because these are 11 roots that are very sensitive to damage, and that damage can 12 significantly get worse as time goes on, particularly when 13 you've lost sensation and reflexes, and you also, and he also 14 manifested -- and I want to check my note one quick time here 15 to see what we have (perusing). 16 Started to manifest what's known as a Sperlings 17 Maneuver, and that's a provocative test whereby you are 18 actually pushing down on the spine and twisting it a little bit 19 to put a little extra pressure on those nerve roots to see 20 whether or not they dysfunction. 21 At this point in time when you see that happen 22 the issue is to treat it so that it doesn't get any worse. 23 And the only way to actually physically treat it 24 is to remove the broken discs, and take the pressure off those 25 nerves, so that they don't continue to cause progressive Dr. Merola - Direct 484 1 damage. 2 Because the issue is that with progressive 3 damage, you are not going to get any return of function to 4 those nerves, because the cord and the nerves are very 5 sensitive to damage, and don't regenerate, as other parts of 6 your body might regenerate. 7 Once you've lost nerve tissue and nerve function, 8 particularly reflexes, or muscle weakness, those things don't 9 recover over the course of time, so you want to prevent that 10 from getting any worse. 11 Q Doctor, any significance with respect to Mr. Vidals' 12 age? 13 A So I believe at this point Mr. Vidals is in his 14 middle, middle 40s or so. 15 So, in terms of quality of life, a good way to 16 look at it is quality of life and demands of life over the 17 course of time. 18 We're talking about a young person who has more 19 years to function. 20 And, therefore, you're a little bit more 21 proactive in terms of treating this, because you want to 22 prevent this particular thing from getting any worse as time 23 goes on. 24 Q And did you make any recommendation for him? 25 A Yes. Dr. Merola - Direct 485 1 Q What was that? 2 A So the recommendation was to remove the discs, that's 3 called a cervical neck discectomy, removal of the discs. 4 And after you remove the discs, the discs are 5 replaced, and the bones are then basically glued, and held 6 together in a process called a fusion, so that that segment of 7 the spine does not continue to cause any progressive damage. 8 The entire procedure is called an anterior, which 9 means through the front; cervical, which means the neck; 10 discectomy, removal of the discs; and spinal fusion or 11 stabilization of the neck. 12 Q Doctor, is this something that remains permanent in 13 Mr. Vidals, or is it taken out, or something else? 14 A So it's a permanent replacement of the discs, and a 15 fusion, or a reconstruction of those vertebral bodies that are 16 causing the problems. 17 Q What is the next thing you did? 18 A So I outlined that for Gustavo, and gave him an 19 opportunity to think about it. 20 And he had made a decision that the condition was 21 bad enough for him to want to proceed forward with surgery. 22 So the next step at that point in time was really 23 surgery. 24 Q Did you explain the risks, if he did, what is it that 25 you explained to him? Dr. Merola - Direct 486 1 A Sure. 2 So, when we're talking about any type of surgical 3 procedure, there are advantages and disadvantages to surgery. 4 So there is what we call a risk and a benefit of 5 surgery. 6 The advantages of surgery in this case are, 7 number one, to get the pressure off those nerves in order to 8 prevent them from continuing to get worse as time goes on. 9 Number two, to try to alleviate some of the 10 symptoms of the pressure on those nerves, and to stabilize the 11 neck as well. 12 So those are the benefits, prevent the problem 13 from getting worse. 14 The risks of this particular kind of operation 15 involve, first of all, the risk of the operation itself, which 16 involves a general anesthetic. 17 General anesthesia is involved. There's an 18 incision, which means an opening of the skin or the area you 19 are going to work on. 20 So there's the inherent risk of an infection. 21 Antibiotics are given both before and after surgery for that 22 infection risk. 23 The vocal cords and the esophagus, or the food 24 tube, as well as the major arteries and veins that go up into 25 your brain, need to be moved out of the way when you are doing Dr. Merola - Direct 487 1 the procedure. 2 So there's always a risk when you move those 3 structures out of the way, and you need to hold them out of the 4 way while you are doing your procedure. 5 There's always a risk that those structures may 6 be injured or damaged. 7 And, then, there's the risk of postoperative 8 care, like a lung infection or pneumonia, those types of things 9 that also may be related to the anesthetic. 10 The actual operation itself needs to heal because 11 the bones that you are now holding together have to heal 12 themselves in what is known as a fusion. 13 So that's a, a more long-term potential risk of 14 surgery, that you need to watch as time goes on. 15 And then in the future, we need to watch the 16 anatomy of the neck, and see how it behaves because of the 17 fusion process, because that fusion process can, in part, put 18 different stresses on different portions of the spine, so other 19 portions of the spine over the course of time can also become 20 either degenerative or break down. 21 So these are some of what we call risks 22 associated with the surgery itself. 23 So, we go over the advantages and disadvantages 24 of the surgery, and then come to a decision about whether or 25 not we will or won't do surgery. Dr. Merola - Direct 488 1 The greatest advantage, being preserving nerve 2 function, so you can continue to use your arms and your hands. 3 Q Did you explain to Mr. Vidals anything to do with 4 whether that will eliminate pain? 5 A So, when you are -- pain comes in different forms, 6 when you are dealing with the spine. 7 There's one aspect of pain, is pain that is going 8 into the nerves themselves. 9 And surgery can certainly decrease neurological 10 pain, or nerve pain, by getting the pressure off the nerves, 11 and preventing those nerves from continuing to be damaged. 12 Then there's pain that we call axial pain. 13 Axial pain is pain that is in the, either the 14 neck or the back area the spinal area itself. Axial pain is 15 much more difficult to control, because there are many more 16 factors involved with that type of kind of pain. 17 So, when we talk about pain relief from surgery, 18 the major thing that we're looking at is the nerves, really, 19 doing an operation on the nerves itself, and not so much on the 20 spine, to make the spinal pain or the axial pain go away. 21 So there's always a component of residual axial 22 or spinal pain that's left even after these procedures. 23 And that's the major, what we call realistic 24 expectation of surgery. 25 So, surgery is good at protecting and helping Dr. Merola - Direct 489 1 nerves. 2 It is not so good at making spinal pain go away. 3 Q Next, when is the next time you saw him? 4 A Actually the next time I had seen him was in the 5 hospital for the procedure itself, which occurred in July of 6 2011. 7 At the end of the July, July 20, 2011, that was 8 for the actual discectomy itself and spinal fusion. 9 Q And at that time, did you do the surgery? 10 A Yes. 11 Q Doctor, I am going to show you some exhibits. 12 MR. ROSENBERG: Judge, could we have these 13 marked, please. 14 MR. KAMINSKY: Could I see it. 15 THE COURT: Why don't you show it to defense 16 counsel first. 17 MR. KAMINSKY: Judge, could we approach on 18 these. 19 THE COURT: Sure. 20 (Discussion at the side bar out of the hearing 21 of the jury.) 22 THE COURT: Members of the jury, take a quick 23 recess. 24 I'll ask you not to discuss the case among 25 yourselves because you haven't heard all the evidence yet. Dr. Merola - Direct 490 1 THE COURT: You can have a seat, Doctor, if you 2 want to. 3 MR. ROSENBERG: Judge, I know we had an 4 off-the-record discussion, and your Honor has informed me 5 that I have one, two, three, four, five exhibits, Judge, 6 that I intend to use for demonstrative purposes only. 7 On one of the five, I have three views, and your 8 Honor says that I will be able to offer into evidence, was 9 it one or two; I don't remember. 10 THE COURT: The middle one. 11 MR. ROSENBERG: Just the one. 12 Is there a reason why I can't introduce into 13 evidence a picture that has been exchanged with the 14 defendants showing where the incision was? 15 THE COURT: The top left. 16 Was that exchanged? 17 MR. ROSENBERG: Of course. 18 MR. KAMINSKY: The picture in the top left we 19 have. 20 THE COURT: The top left and the middle, 21 provided I have a foundation for the middle. 22 But we can do that. 23 Do you want to mark the smaller ones as Court 24 exhibits? 25 MR. ROSENBERG: That's fine. Dr. Merola - Direct 491 1 On another exhibit, is the actual instruments 2 that are used during the surgery that the doctor can 3 identify, that this is, yes, this is what is in him. 4 This is what I used; this is the procedure in 5 which I use, and it's my understanding, your Honor, is not 6 allowing me to use that as an exhibit either. 7 Correct? 8 THE COURT: Correct. 9 MR. ROSENBERG: Judge, there's another exhibit 10 that, once again, shows the actual, an artist's rendition, 11 which shows the actual incision site, with the instruments 12 that are being used in that incision, as well as, also the 13 equipment that's being used, the hardware that is being 14 inserted. 15 And, again, your Honor has refused to allow me 16 to use that. 17 THE COURT: Right. 18 MR. ROSENBERG: And another exhibit, is, again, 19 an incision site which, again, if your Honor were, would 20 allow me to make a foundation for it, the doctor surely 21 will testify that this is what it looks like when he goes 22 in. 23 It's an artist's rendition of it, because there 24 are no pictures allowed to be taken during the surgery, 25 Judge, of this kind. Dr. Merola - Direct 492 1 I was never able to get actual pictures, but 2 this is as close as you are going to get of a picture in 3 what it looked like. 4 And surely the doctor could testify that this is 5 what it looks like. 6 And this is what I saw. 7 And this is what I caused to be done during the 8 surgery. 9 And this picture shows also the instruments 10 being used the incision site, and also the tools involved. 11 THE COURT: Mr. Kaminsky, do you wish to be 12 heard. 13 MR. KAMINSKY: Yes, your Honor. 14 I believe your Honor's ruling to preclude these 15 are consistent with your earlier rulings in the liability 16 portion of the trial, where I attempted to use 17 demonstrative evidence and it was precluded because they 18 had not been previously exchanged with the plaintiff's 19 attorney. 20 I think the fact that he's trying, plaintiff's 21 counsel is now trying to use his own demonstrative 22 evidence that he did not previously disclose to me, where 23 he objected earlier, is a little inconsistent with his 24 prior position. 25 So I think your Honor's ruling is consistent, Dr. Merola - Direct 493 1 and we agree that these should not be used for either 2 evidentiary or illustrative, demonstrative purposes before 3 the jury. 4 MR. ROSENBERG: Pictures of the scene are not 5 demonstrative evidence. 6 Those are photographs of the scene that were not 7 exchanged. 8 These are not photographs of a scene; these are 9 artist's rendition for the doctor, to assist the doctor in 10 showing the jury what it looks like when he goes inside, 11 what he does, what he cuts. 12 This is, Judge, if I may, the doctor is here, 13 can I lay a foundation through the doctor so that he could 14 inform the Court as to whether or not these are in fact 15 what he does. 16 MR. KAMINSKY: Judge, if I may, I don't think 17 it's necessary. 18 I'll stipulate the doctor will say these are 19 indicative of what he does. 20 Those are overly dramatic illustrations. 21 THE COURT: It was one of my points; we have 22 blood-splattered instruments, a lot of blood on these. 23 It outweighs whatever illustrative value they 24 have for the jury, and will have an inflammatory impact 25 for the jury. Dr. Merola - Direct 494 1 MR. ROSENBERG: If that is your ruling, the 2 first one has no blood in it. 3 So, there's no blood in there; how is that 4 overly dramatic? 5 THE COURT: Same one as the actual photo that 6 I'm letting you put in. 7 MR. ROSENBERG: Judge, this is a copy of an 8 x-ray. 9 THE COURT: Right, that I'm allowing in. 10 But the drawing next to it is the same one. 11 MR. KAMINSKY: It's repetitive; has not been 12 exchanged. 13 THE COURT: Allow those two in, but you have an 14 exception to my ruling. 15 MR. ROSENBERG: Judge, in the second one I have, 16 there's blood nowhere; it shows tools that are being -- it 17 shows the cage. 18 THE COURT: And blood splattered on the tool; on 19 the surgeon's fingers. 20 Counsel, you have an exception. 21 MR. ROSENBERG: Can I cut this piece out. 22 THE COURT: Which piece? 23 MR. ROSENBERG: I'll cut out the cage. Why 24 can't he testify about the cage to hammer; there is no 25 blood on that. Dr. Merola - Direct 495 1 THE COURT: If you want, I'll allow a picture, 2 assuming there's a foundation, for the fiber cage. 3 I'll allow that in. 4 MR. ROSENBERG: And the hammer? 5 THE COURT: I don't know how you are going to 6 redact the hammer. 7 Getting a little silly. 8 MR. ROSENBERG: I'll put a piece of paper, I'll 9 use the smaller ones. 10 MR. DATNY: I'll object. 11 It shows the force being very aggressive. 12 MR. ROSENBERG: This shows a force being 13 aggressive? 14 MR. DATNY: Mid-motion. 15 THE COURT: I'll allow you to have the cage. 16 That's it. 17 MR. ROSENBERG: Not the hammer. 18 THE COURT: Not the hammer and all the rest of 19 it. 20 THE COURT: We're going to mark the smaller ones 21 for I.D. 22 The smaller ones will be Court exhibits. 23 The one we'll allow in, we can mark that as 24 plaintiff's exhibit. 25 There are two I am going to allow in. Dr. Merola - Direct 496 1 THE CLERK: Those are four. 2 MR. ROSENBERG: Judge, if your Honor will allow 3 me, then, for a continuance until Monday. 4 What I'll do, Judge, is I'll come in with the 5 same exhibits, with no blood at all in the artist's 6 rendition. 7 THE COURT: Not going to extend this trial so 8 you have demonstratives. 9 MR. ROSENBERG: It's one day, and I will have 10 him come back. 11 This is the heart of the case. 12 The doctor did the surgery to the cervical 13 spine. 14 I'll take all the blood out, then. 15 THE COURT: He could explain the surgery to 16 them; he can show them the x-ray. 17 But this is not crucial enough. 18 This jury is now going to be here, they're going 19 into the 16th and 17th. 20 Not going to give a continuance for 21 demonstratives like that. 22 MR. ROSENBERG: Judge if -- will I be able then 23 to offer, or be able to show these pictures to the jury, 24 without the blood on it on Monday, without the doctor. 25 MR. KAMINSKY: That's ridiculous. Dr. Merola - Direct 497 1 THE COURT: Counsel, no. 2 We're done with it. 3 You have your exception. 4 I made my ruling. 5 THE CLERK: Which one are we marking as a 6 plaintiff's exhibit? 7 THE COURT: One is the one with the x-ray; and 8 one is the one with the cage. 9 THE CLERK: Just for I.D. 10 THE COURT: They will be in evidence, but they 11 have to be redacted before we show them to the jury. 12 THE CLERK: Plaintiff's 23 and 24 in evidence. 13 Subject to redaction. 14 (Items on posterboard so marked in evidence 15 subject to redaction as Plaintiff's Exhibit Number 23 and 16 24, respectively.) 17 MR. ROSENBERG: Can I bring the doctor back 18 Monday. 19 We'll finish with him today, and just for the 20 sole purpose of, with demonstrative evidence, with no 21 blood at all in it for the doctor to authenticate that, 22 yes, this is a true rendition of what it looks like during 23 my surgery. 24 THE COURT: No, we're going to start with the 25 defendant's case on Monday. Dr. Merola - Direct 498 1 THE CLERK: Court Exhibits 2 to 7 are marked, 2 small poster board. 3 Plaintiffs 23 and 24 in evidence. 4 Those are the larger poster boards. 5 And they're in evidence subject to redaction. 6 MR. ROSENBERG: If I take a piece of paper and 7 put it over that. 8 THE COURT: Just cover the lower left and the 9 far right. 10 I don't know if you want -- 11 MR. ROSENBERG: Is there a reason there is no 12 blood on this one on the right? 13 THE COURT: Counsel, it's the same as the one 14 next to it. 15 I made my ruling. 16 Let's move on. 17 MR. ROSENBERG: Okay. 18 THE CLERK: Ready for the jury? 19 THE COURT: No, you have to redact that first. 20 THE CLERK: Oh. 21 (Pause in proceedings.) 22 MR. ROSENBERG: I already had new ones made up, 23 Judge, that do not have any blood on them at all. 24 And they are ready now. 25 By the time I have someone pick them up across Dr. Merola - Direct 499 1 the street at Remsen, on Remsen, I'll have them brought 2 over. They won't be these; they will be 8-and-a-half by 3 11. 4 MR. DATNY: I think we're going to object to any 5 of the renditions. 6 THE COURT: Let's see what the renditions are. 7 MR. DATNY: Regardless of whether there's blood 8 or not, we feel they're prejudicial, not fair and 9 accurate. 10 THE COURT: Counsel, you are arguing in a 11 vacuum. 12 MR. DATNY: All right. 13 MR. ROSENBERG: Judge I have him going over to 14 go get them. 15 By the time someone walks over it will be about 16 10 or 15 minutes. 17 I know he left already to go get them. 18 (Jury enters the courtroom.) 19 THE CLERK: Case on trial. All parties present. 20 All jurors present. 21 THE COURT: Mr. Rosenberg. 22 DIRECT EXAMINATION 23 BY MR. ROSENBERG (continuing): 24 Q Doctor, I think we were up to the surgery part if I'm 25 not mistaken. Dr. Merola - Direct 500 1 Can you tell the jury what was entailed in the 2 surgery; what did you do? 3 A So this particular surgery involved removing the two 4 discs that were causing a problem, at what's known as the 5 C4-C5, and C5-C6 segment. 6 In order to get back to the area where the spinal 7 cord is, and the nerves are, to get the pressure off of those 8 nerves and the spinal cord, after the discs themselves are 9 removed, they're replaced with what we call a biomechanical 10 implant. 11 And that implant acts as a shim to maintain 12 proper vertebral body height so that the bones can continue to 13 remain separated from each other. 14 And it also acts as an area where we can now 15 encourage a fusion or a binding together of the bones. 16 After those implants are placed, we lock the 17 reconstruction together with a titanium plate and some screws 18 to hold it together, so that we can get the patient up and out 19 of bed the next day, and get them up and walking. 20 And so that procedure is basically the 21 discectomy, a decompression or taking of pressure off of the 22 nerves and the spinal cord. 23 And then the reconstruction or the fusion process 24 by placing the biomechanical devices or cages in between the 25 bones and then locking it together with a plate and some Dr. Merola - Direct 501 1 screws. 2 Q Doctor, you used the word before, a "herniated" disc. 3 Can you explain to them what that is? 4 A So, when we think about that disc or that piece of 5 material that's in between the bones and we talk about it in 6 terms of a jelly donut, the disc no longer has the ability to 7 hold on to the jelly that's on the inside because there is a 8 tear or a breakage in a portion of that outer covering of the 9 disc. 10 And so that portion of the outer covering and the 11 jelly itself then come out of the area where they belong. 12 And in this case, into the spinal canal area and 13 the nerve area. 14 Q When you did the surgery, is it that you eliminate the 15 herniated disc? 16 A So the disc is removed in its entirety, correct. 17 Q So, okay, Doctor, I am going to jump ahead for a 18 second since we're on this, and I am going to ask you to look 19 at what is in evidence already. 20 THE CLERK: Plaintiff's 23. 21 Q Doctor, I am going to show you what has been marked 22 into evidence as Plaintiff's 23. 23 And without creeping into the court reporter's 24 lap, I am going to show you -- 25 OFFICER: Counselor. Dr. Merola - Direct 502 1 (Pause.) 2 Q First off, what is that, Doctor? 3 A So, this in the middle of the postster board is an 4 x-ray, it's a side view x-ray of the postoperative cervical 5 spine. 6 And what we can see in the x-ray is we can see 7 the plate and the screws and the biomechanical device cage 8 implants in between the C4-C5 and C5-C6 vertebral bodies. 9 Q And where was the herniated disc? 10 A So the discs are located, if I can come down. 11 MR. ROSENBERG: Judge, can he come down. 12 THE COURT: Yes. 13 (Witness approaching.) 14 A So, the area where you see the plate is the front side 15 of the spine and the neck. 16 Q If you grab that model. 17 A So, as we're looking at it, it lines up like this 18 (indicating). 19 And this is the front, the side of the neck. 20 This is the backside of the neck. 21 The spinal cord and the nerves are behind the 22 vertebral bodies. 23 So the spinal cord and the nerves are in this 24 segment of the spine. They're running back here. 25 The disc it's are the clear areas that you see in Dr. Merola - Direct 503 1 between the bones. 2 So when the discs are removed it's replaced with 3 this carbon fiber cage. 4 Q Stop for a second. I am going to show you what is in 5 evidence as Plaintiff's 24. 6 And ask you what that is. 7 A So this is what, this is called a carbon fiber cage 8 this is the biomechanical implant that goes between the 9 vertebral bodies in order to maintain vertebral body height. 10 And it shows up on an x-ray, because it's made 11 out of material that you can't see on an x-ray. 12 There are these small metal ball bearings that 13 they place into that particular cage, so that you can see where 14 it's located when you take an x-ray. 15 So, if you see these three dots and these three 16 dots, they are inside the cage device itself, so you can tell 17 that the cages are sitting right in between the vertebral 18 bodies. 19 So they have replaced the discs that were 20 removed. 21 And also add to the fusion process because each 22 one of these cages is packed in with what's known as bone 23 graft, in order to get the bones to heal together. 24 Q And this mark, what is that? 25 A This is a photograph of Gustavo's, the left side of Dr. Merola - Direct 504 1 Gustavo's neck. 2 You could see the incision, the incisional area 3 along the left side of the neck, which is the area where the 4 cervical approach is undertaken. 5 Q And before you sit down, this apparatus, does any of 6 that, before its time, come out? 7 A No. 8 This remains in place in order to maintain the 9 reconstruction of everything to stay there. 10 Q Okay. 11 Doctor, this type of surgery that you did for Mr. 12 Vidals, what is the life expectancy of the equipment that is 13 inside him? 14 A So, the implants that are located inside the vertebral 15 bodies that are holding it together, provided the fusion 16 process occurs, those implants will remain there for life. 17 The issue with a postoperative spinal fusion, 18 where you have implants and you fused a portion of the spine, 19 the major issue, as time goes on, is what happens to the other 20 portions of the spine, and what we call the adjacent segments. 21 Those are the segments that are right up against 22 the area where the fusion has occurred. 23 So, postoperatively, we're monitoring not only 24 the healing process, but we're also monitoring what are also 25 known as the adjacent segments. Dr. Merola - Direct 505 1 Q When the next time you saw Mr. Vidals? 2 A So, after surgery, I saw him for his postoperative 3 visits. 4 So, we operated on him July 20th. 5 And my next visit with him was his first 6 postoperative visit that was July 29 of 2011. 7 Q Go ahead. 8 A So the purpose of that visit is to make sure that the 9 first stages of the healing processes are going well, that 10 there are no signs of an infection, and that he's not having 11 any problems with the actual procedure itself. 12 Q Did he make any complaints of pain to you when he came 13 in on that day? 14 A So, at that time, the standard issue, at that point, 15 is postoperative soreness from the actual procedure itself. 16 But otherwise he had rendered no significant 17 complaints or symptoms. 18 Q When is the next time you saw him? 19 A Next saw him in September of 2011. 20 Q Any complaints? 21 A So at that time he was still pretty short out of his 22 surgery, July surgery, so, August, September, about a 23 month-and-a-half or so out of surgery at that point in time. 24 Still doing -- he's stable after surgery, no 25 problems or any issues with the actual procedure itself. Dr. Merola - Direct 506 1 Q Doctor, can you tell the jury for a -- with respect to 2 herniated discs, how do they happen? 3 A So, disc herniations can happen in a variety of ways. 4 Basically what has to happen, in order for there 5 to be a herniation, is there needs to be a tear in or a problem 6 with that outer ring that encloses the inner like-jelly 7 material. 8 So when that outer ring becomes incompetent or 9 torn, or ruptured in some way, that allows a herniation to 10 occur. 11 Q Doctor, can you tell the jury, with a reasonable 12 degree of medical certainty, how much force is needed for a 13 herniated disc to happen? 14 A So there are, when we talk about force to a body part 15 and we're talking about force exerted to a disc, it's, there's 16 no absolute number, per se, that you can say these discs are 17 going to herniate at X, Y, Z number, because when you are given 18 a clinical situation, for example. 19 And I have seen patients that have had very 20 little to no trauma with disc herniations. 21 And then I have seen patients that have had a lot 22 of trauma, and have had significant other injuries, but don't 23 herniate any discs. 24 So there's a huge spectrum of patients you see, 25 whereby there's minimal force. Dr. Merola - Direct 507 1 And there's a lot of force. 2 And it's a whole spectrum in between. 3 So there really isn't any specific amount of 4 force, or force number that I can say this is going to be 5 responsible for herniating a disc. 6 It's often times more a function of a complex, 7 unintended motion in that particular body part. 8 So, in other words, the body part involved in the 9 area where the disc is no longer able to resist either a 10 torsion or a twisting, or a load, or a bending in the spine. 11 The interesting thing is, that unlike an elbow or 12 knee, when the spine moves in any one direction, the other 13 directions also have to accommodate it. 14 It's got what is called multiple planes of 15 motion. 16 So even when you just bend forward there's an 17 amount of rotation that happens. 18 When you are rotating, you also bend. 19 So, anything that exceeds the ability of that 20 disc to resist those motions, in an unintended fashion, can 21 cause a herniation. 22 Q What is "unintended"? 23 A Unintended, you would exceed what is known as the 24 physiological limit of that disc. 25 So, just like any other piece of cartilage in Dr. Merola - Direct 508 1 your body, if you exceed the physiological limit of that 2 portion of your body to resist motion, then you are going to 3 have, that cartilage will fail. 4 Q Doctor, in your experience, when you said "minimal" 5 amount of force, can you tell the jury what that means? 6 A So there are patients, for example, that can just go, 7 you can have can wear-and-tear activities that cause 8 herniations to happen. 9 You can have patients that have, for example, 10 bend over to pick something up, and that can cause a disc to 11 herniate. 12 And as I said, you could even have patients who 13 have had rather significant trauma where they have broken a leg 14 but have not herniated any of their particular discs because 15 those portions of their body have not exceeded that limit or 16 capacity to fail. 17 It's variable, and it depends on the disc, 18 depends on the specifics of the motion that are happening at 19 any given time, and that's why you can't put a complete number 20 on it. 21 Q Doctor, can you tell the jury a little bit about the 22 aftercare for people that have this type of fusion that you 23 perform? 24 A So, aftercare is broken up into different sections. 25 Acute aftercare, which is right after the actual surgery Dr. Merola - Direct 509 1 itself, you want to observe them to make sure they have not had 2 any issues with the actual surgical procedure. 3 The other thing is, you would like to get them 4 back into doing some type of postoperative rehabilitation in 5 order to get their muscles moving a little bit better, to try 6 to maximize their range of motion, and to decrease their pain. 7 And then in patients who have that axial or 8 spinal pain, you also want to get them involved with a pain 9 management protocol or pain management doctor to help them 10 better manage that axial or spinal pain, that you can't treat 11 with a surgery. 12 Q Doctor, with respect to Mr. Vidals, do you know 13 whether or not he was referred to a pain management doctor, 14 and, if so, who referred him? 15 A Yes. 16 So, for Mr. Vidals, for example, he was referred 17 to pain management here in Brooklyn. 18 And in fact I think I referred him to Dr. Davie 19 for treatment of that axial pain, that spinal pain. 20 Q Doctor, can you tell the jury, when you refer someone 21 for pain management, what is the purpose of that? 22 A The purpose of it is to manage pain that cannot, that 23 I can't treat from a surgical perspective. 24 Q And, again, in your experience doing spinal surgeries, 25 do patients normally need that for the rest of their life; what Dr. Merola - Direct 510 1 are the options associated with that, with pain management? 2 A So, pain management, it depends on what the issue 3 causing that particular pain problem is. 4 When the pain has been persistent for many 5 months, and it has not gotten any better, patients fall into 6 the category of what we call "chronic pain" and in that sense 7 when you have chronic pain, it's difficult for it to go away. 8 And therefore you are looking at long-term, if 9 not lifetime care for chronic pain. 10 Q Do you know what Mr. Vidals did for a living? 11 A So, I -- Mr. Vidals was a gardener and landscaper for 12 his occupation. 13 Q Let me jump ahead and ask you with a reasonable degree 14 of medical certainty, is Mr. Vidals going back to work as a 15 gardener? 16 A No. 17 Q Explain to them why not. 18 A So, couple of different issues. 19 Number one, there is the chronic pain that needs 20 to be dealt with, so he's on pain medications for that. 21 And his pain limits his spinal range of motion, 22 particularly his head and neck range of motion. 23 So that's one issue. 24 The other issue is that he has some residual 25 neurological deficits to the arms and hands; that includes some Dr. Merola - Direct 511 1 sensory loss, some reflexive loss, and many have -- 2 Q Let me interrupt you for a second. 3 Is that ever coming back? 4 A Those losses of sensation and reflexes are part of 5 that portion of the nerves that do not recover over the course 6 of time. 7 And the reason for having done the surgery is so 8 that the weakness or the ability to use your arms and your 9 hands has not progressed over the course of time. 10 So, reflexively, and from a sensory point of 11 view, those issues are not going to resolve over time. 12 So there's that, combined with the overall 13 chronic pain that he has, plus there's the wear and tear on the 14 actual fusion site itself, that, going on over the course of 15 time, as I said, we need to be aware of those adjacent 16 segments. 17 Q Doctor, let me go back for a second and ask you when 18 you did the surgery itself, did you look inside the incision 19 where you were operating with Mr. Vidals? 20 A Yes. 21 Q Tell the jury what you saw with your eyes inside Mr. 22 Vidals' discs before you removed them? 23 A So, part of the, when you are doing the surgical 24 process, and doing the actual operation itself, you are 25 obviously, you are there removing, physically removing disc Dr. Merola - Direct 512 1 material. 2 And because the purpose of the operation is to 3 take the pressure off of the spinal cord and off the nerves, I 4 need to visualize the nerves and the cord. 5 And I need to look at the disc. 6 So there's a section of the operative report, 7 intraoperative findings, in addition to the description of the 8 operation, that kind of describes what is there in this 9 particular case. 10 Q Doctor, you could read that to them; it's in evidence, 11 the operative report. 12 A So, in this particular case, my intraoperative 13 findings section demonstrated that at the C4-C5 segment I found 14 what was called an extruded. 15 "Extruded" means a piece of disc material that is 16 outside of the confines of the vertebral bodies, so it's 17 completely outside where the vertebral bodies should be, and 18 that was in the canal region, and in the area where the cord 19 and roots were; that's C4-C5. 20 Q Doctor, can you show them on this? 21 A So, C4 and C5 are the fourth and fifth vertebral 22 bodies, the disc in between the fourth and fifth vertebral 23 bodies. 24 And by "extrusion" what I mean to say is in the 25 canal area where the cord is, and where the cord runs. Dr. Merola - Direct 513 1 At C5-C6, which is the segment underneath C4-C5, 2 when you looked at the posterior, or the backside of that 3 anulus, or the outer ring of the disc, there was a tear there. 4 And herniation was also find in the spinal canal, 5 whereby it was touching a cord and the nerve roots. 6 Q When it touches, what happens? 7 A So, there's a couple of things that happen when it 8 touches the cord and the roots. 9 Number one, it causes irritation because there's 10 inflammation from that disc material being on the cord and the 11 roots. 12 And the other thing it does is, it produces 13 pressure on the cord and on the roots. 14 Q Pain? 15 A And, so, because your nerves are responsible for how 16 you feel things, pain is generated into the region of your 17 nerves. 18 Q Doctor, this is something that you saw with your own 19 eyes? 20 A That was part of the operative findings that were 21 evident when I did the surgery, yes. 22 Q By the way, anything else on that operative report, of 23 any significance that we haven't talked about? 24 A No. 25 Q Okay. Dr. Merola - Direct 514 1 When is the next time you saw Mr. Vidals? 2 A I saw him in December of 2011. 3 Q And did he make any complaints of pain? 4 A So, at that time most of his symptoms were pain in the 5 neck area, which is axial neck pain. 6 He had somewhat we call suboccipital headaches in 7 the posterior part of your head, where it attaches to your neck 8 area. 9 And he was undergoing pain management. 10 Q Did you perform any range of motion testing for 11 Mr. Vidals? 12 A In December, yes. 13 Q Can you tell the jury how that went? 14 A So, range of motion testing is something that you do 15 whereby you feel the muscles and the body part. 16 When you palpate spasm, you know you've gone too 17 far. 18 So you don't want to exceed that amount of 19 motion. 20 And, so, for Mr. Vidals, in December of 2011, 21 backwards bending of the spine was at zero degrees; you 22 couldn't get him beyond neutral without spasm palpable in his 23 neck. 24 He was able to flex about 20 degrees; that is, 25 bring his chin towards his chest about 20 degrees. Dr. Merola - Direct 515 1 Lateral bending, side to side motion, was 15 to 2 the right, and about 10 to the left. 3 And right lateral rotation was 10, and left 4 lateral rotation was 15. 5 Q How does that fit into the norm; can you tell them? 6 A Normally extension is something, whereby you need to 7 be able to get your neck back to the point where you can get 8 your eyes up towards the sky. 9 Forward flexion is where you want to get your 10 chin down to your chest. 11 Right lateral bending, you want to be able to get 12 your neck close to your shoulder, not completely on your 13 shoulder; otherwise, you would really have a rubbery neck. 14 You want to get down at least to 45 or 50 degrees 15 lateral bending, side to side. 16 And rotation is something where you want to be 17 able to get your eyes over your shoulder so that you can see to 18 your right and your left, if you have to, and, in general, 19 those are about 80 degrees. 20 You don't ever quite get to 90 unless you really 21 force yourself; normally at allow 80 degrees or so off your 22 shoulder for rotation. 23 Q In all those range of motion testing, they were all 24 significantly deviating from normal? 25 A So, yeah, these were pretty significant in terms their Dr. Merola - Direct 516 1 restrictions because of spasm, correct. 2 Q When is the next time you saw Mr. Vidals? 3 A I then saw him in the summer of 2012, in June of 2012. 4 Q Any complaints when he came in? 5 A At that time he was essentially what we would call 6 status quo, axial pain in the neck area, continuing pain 7 management. 8 Q And did you do range of motion testing at that time? 9 A Yes. 10 Q So what were they, and if you could compare them to 11 normal again? 12 A So, in June of 2012, range of pain starting to improve 13 a little; extension, a little bit, to at least five degrees, 14 which I have recorded. Flexion. 15 Q What is normal for that? 16 A So, extension, about 65 to 70 degrees worth of 17 extension, functionally, to be able to get your eyes toward the 18 sky. 19 Q He did five. 20 A He was able to do about five, correct. 21 Flexion to 30. 22 And you want to be able to get chin to chest so 23 30 is about halfway there. 24 Right lateral bending was at 20, so about 20 25 degrees he's at halfway for lateral bending to the left. Dr. Merola - Direct 517 1 Left lateral bending a little bit, at 25, a 2 little bit better than half. 3 Right lateral rotation still significantly 4 restricted at 15 degrees. 5 And left lateral rotation at 20 degrees. 6 Q What's normal? 7 A So your rotations are 80 degrees. 8 Q Okay. 9 By the way, is that to be expected? 10 A Yes. 11 Q Anything else on the exam? 12 A Neurologically didn't have any progressive 13 neurological deficits. 14 His neurological deficits were pretty much the 15 same they had been preoperatively. 16 Q By the way, did you make recommendations to Mr. Vidals 17 about often he is to come back to you? 18 A So, when you are following up with the patients you 19 are, your first couple of visits happen close to the visit. 20 I like to see patients the first week after the 21 surgery, and somewhere in the neighborhood of four to six weeks 22 after that first visit, and three to four months thereafter. 23 And then you can start spacing out your 24 followups: Six, eight months, and then up to a year or so, 25 depending upon whether or not there are changes. Dr. Merola - Direct 518 1 If they are status quo and they're basically 2 doing the same as they had been, you can space your follow-ups 3 out to about a year, sometimes a little bit more than a year. 4 If there are changes, for example, recurrent pain 5 going down your arms or your hands, new pain going down your 6 arms or your hands, or new pain in your neck, I would want to 7 see them back in earlier. 8 Q When is the next time you saw Mr. Vidals? 9 A So I then saw him in January of 2013. 10 Q And any complaints at that time? 11 A So, at that time, let's see. 12 Most of the complaints at that time were neck 13 pain and back pain. 14 Q And did you do any testing; and if so, what it was? 15 A So on that visit once again neurologically he was 16 stable; that is, no progressive changes. 17 Extension, cervical extension able to get him 18 back to about 7 degrees or so. 19 Flexion at about halfway once again, at about 30. 20 Right lateral bending at about half, 20. 21 Left lateral bending at about 20. 22 Right lateral rotation, 20. 23 Left lateral rotation, 20. 24 Some improvement in his ranges of motion. 25 Q Significant deficits, Doctor? Dr. Merola - Direct 519 1 A Compared to normal, flexion about half; lateral 2 bending about half; rotation less than half. 3 Q Doctor, can you tell the jury what is the significance 4 of that range of motion deficits, or are there? 5 A So, those ranges of of motions, there are function 6 range of motion in your head and neck, where you want to be 7 able to move your head and neck into positions to be able to 8 adjust your vision to see things. 9 Range of motion deficits to your cervical spine 10 obviously impair your ability to do that. 11 That's basically what you are talking about, when 12 you are talking about head and neck range of motion 13 impairments. 14 Q Doctor, what you found, was that your last visit, was 15 that his last visit to you? 16 A October of 2013. 17 Q Okay. 18 Any complaints in October? 19 A So, mostly at that time once again axial pain; that is 20 pain in the neck. 21 He also had back pain. 22 Q Any range of motion testing you did? 23 A Range of motion testing at that time, let's see, 24 almost the same as it had been previously. 25 No major changes. Dr. Merola - Direct 520 1 Q Anything else of significance in the October visit? 2 A October, no neurological detearation, range of motion 3 deficits, chronic pain, and that's it. 4 Q Doctor, with a reasonable degree of medical certainty, 5 range-of-motion wise, what does the future hold for 6 Mr. Vidals? 7 A So, from a range of motion point of view, I think it's 8 reasonable to have range of motion within what he has now, to 9 maybe plus or minus five to 10 degrees or so. 10 He's going to have some restrictions in his range 11 of motion, because of the fusion in those three vertebral 12 bodies and two disc segments. 13 Those are going to be restricted. 14 Chronic pain is going to restrict him. 15 So I would predict that reasonably he will have 16 some permanent restrictions in his ranges of motion. 17 Q And of significance? 18 A Significant from normal, yes. 19 Q And that's what I'm asking you to compare it to. 20 Future permanent loss of range of motion, can you 21 quantify for them, is it about half of a normal person? 22 A I would say, reasonably looking at about half of 23 normal now. 24 And then when you look at long-term with the 25 normal process of aging as time goes on, those range of motion Dr. Merola - Direct 521 1 deficits, if they're half now, you'll see them start to 2 decrease at a certain point in time as he gets older. 3 Q Why is that? 4 A There's a normal wear-and-tear process that happens to 5 all of us as we age. 6 And normally degenerate as time goes on. 7 So you would have to combine those normal 8 degenerative changes, with the actual fusion process itself to 9 kind of give you a picture of how things happen as time goes 10 on. 11 Q With respect to Mr. Vidals, given his age, can you 12 tell the jury will he need future cervical revisions or 13 surgeries; and, if so, how many, and what the costs are 14 associated with that? 15 A So, all of the surgeries that we do orthopedically 16 have kind of a longevity to them. 17 Like if you do a joint replacement that has a 18 certain amount of time that it lasts, spinal reconstructions 19 and fusions also have a time frame. 20 And the reason for that is that as time goes on 21 there are wear-and-tear processes that happen. 22 And there are increased demands that your body 23 makes that you have to accommodate. 24 So those things combine over the course of time 25 to give these reconstructions kind of a longevity to them. Dr. Merola - Direct 522 1 And, in general, when you are talking about 2 patients that are under the age of 60, and they have 3 reconstructions, particularly in this day and age because we do 4 things, or try to do things at older ages. We see that these 5 reconstructions can last somewhere in the neighborhood of 10 6 years. 7 7 to 10 years is a reasonable estimate for what 8 we would consider adjacent segment breakdown, depending on how 9 much wear and tear you put on them. 10 Q Then what happens? 11 A So at that point in time you are then starting to 12 prognosticate a future revision, whereby you would have to 13 address the adjacent segment with another fusion. 14 Q And what are the costs associated with that? 15 A So, when you are looking at cost for surgery, you are 16 looking at a number of things. 17 One is, there's a hospitalization cost that's 18 involved. 19 There's an operating room, and operating 20 personnel. 21 There's several surgeons. 22 There's an anesthesiologist. 23 There's what is known as neurological monitoring, 24 because when you are operating on the cord and the nerve roots; 25 you need to monitor the cord and the roots. Dr. Merola - Direct 523 1 There's the implant cost, of the actual cages 2 themselves, and the spinal implants. 3 And then there's the post-hospital care. 4 So, in general, these particular type of 5 procedures, if you look at all of those costs involved, can be 6 in the neighborhood of about $75,000 for a cervical spine, with 7 at least a one-day hospital stay. 8 If the hospital stay is increased with a 9 revision, because there's extra swelling involved, or another 10 day involved with the recovery process, then those costs can go 11 up to about 90 or so. 12 Q Again, with a reasonable degree of medical certainty, 13 given Gustavo Vidals' age, I know you are not a gypsy or 14 fortune teller, but, again, with a reasonable doubt of medical 15 certainty, how many future surgeries are in store for his 16 spine? 17 A So, I would say reasonably if you give it, if you give 18 this 10 years, and he's in his late 40s now, looking at 10 19 years, for a revision, put him in his middle to late 50s. 20 Maybe a little less demand if he has a normal 21 life expectancy. 22 Maybe two future revisions for his total 23 lifetime. 24 Q Doctor, if Mr. Vidals only lives to be 60 years old, 25 with a reasonable degree of medical certainty what kind of Dr. Merola - Direct 524 1 future needs is he going to need? 2 A So when you think about those future needs you have to 3 think about the fewtion process, and then the normal aging 4 process as time goes on. 5 These things do have a way of, I guess, the best 6 way to describe it is prematurely aging you to the point where 7 you are now a little bit more susceptible to the effects of 8 aging. 9 So, as time goes on, when you are looking at 10 about in the neighborhood of about 60 to 65, you are looking at 11 and decreases in range of motion and pain with difficulties 12 involving activities of daily living, that would be maybe, I 13 mean, if you are going to give this kind of a prognostic 14 picture, you would say maybe at the age of 60, he would be 15 maybe having difficulties more like a 70- or 75-year-old. 16 MR. DATNY: Objection. 17 Speculative. 18 THE COURT: I'll strike the last answer as 19 speculative. 20 You may rephrase it. 21 MR. ROSENBERG: Judge, could we approach for a 22 second. 23 THE COURT: All right. 24 (Discussion at the side bar out of the hearing 25 of the jury.) Dr. Merola - Direct 525 1 Q Doctor, I am going to show you this piece of paper. 2 Would you take a look at that. 3 (Handing). 4 Q Can you tell us, what is shown in that piece of paper? 5 A It's an illustration of by mechanical device 6 placement. 7 Q Is that illustration fair and accurate, a fair and 8 accurate illustration of the surgery that you performed? 9 A Yes. 10 Q And the instruments that are shown in that 11 illustration, are those fair and accurate illustrations of the 12 type of equipment that you used? 13 A Yes. 14 MR. ROSENBERG: Judge, I offer that into 15 evidence. 16 MR. KAMINSKY: Objection, your Honor. 17 THE COURT: Are all the elements in that 18 illustration drawn to scale? 19 THE WITNESS: The -- 20 THE COURT: First, yes or no? 21 THE WITNESS: Yeah, for the most part they are 22 yes. 23 THE COURT: By the "most part," which are not? 24 THE WITNESS: I would say that the vertebral 25 bodies are perhaps a little bit larger, and the vertebral Dr. Merola - Direct 526 1 bodies and the cages are a bit larger than they actually 2 are in life, maybe about five percent or six percent. 3 THE COURT: And the hammer? 4 THE WITNESS: To scale. 5 THE COURT: All right. 6 I'll allow that in over objection as 7 demonstrative. 8 MR. KAMINSKY: Demonstrative. 9 THE COURT: Right. 10 MR. ROSENBERG: Okay. 11 THE COURT: Let's, you mark it. 12 MR. ROSENBERG: Okay. 13 I'll take that back from you for a second. 14 THE CLERK: Plaintiff's 25 in evidence so 15 marked. 16 THE COURT: Not in evidence. 17 THE CLERK: Plaintiff's 25 for I.D., so marked. 18 Q Doctor, if you could hold this up. 19 Tell the jury what the different things are on 20 it. 21 Judge, can he come down for a second. 22 I don't think they can see it over there here. 23 THE COURT: Yes. 24 (Approaching jury box.) 25 A So, this is that carbon fiber cage that we talked Dr. Merola - Direct 527 1 about before. 2 This is a device that's used in order to restore 3 vertebral body height. 4 What we see is an illustration of the spine, and 5 at C4-C5 and C5-C6 we can see the biomechanical devices in 6 between the vertebral bodies. 7 And this illustration is an illustration of how 8 the devices themselves are placed, so the device is fit to 9 accommodate the space that's created between the bones after 10 the disc is removed. 11 There's an object here, instrument called a 12 "tamp." 13 And what the tamp does is it sits on top of the 14 cage, and then you take a mallet, and then the mallet taps the 15 tamp in order to push the cage in between the bones systems. 16 So it's very much like you would insert a shim in 17 between a piece of furniture to level that piece of furniture. 18 So you are basically taking a a tight-fitting 19 object between the two bones, and then tamping it into place. 20 That's the tamp device. 21 And this is a mallet. 22 MR. ROSENBERG: Thank you. 23 (Resuming witness stand.) 24 Q Doctor, do you have an opinion with a reasonable 25 degree of medical certainty, one way or another, whether Mr. Dr. Merola - Direct 528 1 Vidals will need future physical therapy? 2 A Yes. 3 Q Tell the jury. 4 Q When, or for how long, and what they will do? 5 A So future physical therapy for this is what we call 6 basically palliative therapy. 7 That means that it treats and helps to treat the 8 pain and the restrictions in range of motion. 9 Often times, when you stop doing physical therapy 10 your body has a tendency to regress. 11 And what I mean by regress, is you can lose range 12 of motion and can become stiffer and more painful range of 13 motion is helpful, and physical therapy is helpful in what you 14 have so you don't backslide. 15 Q For x-rays or MRI's, can you, do you have an opinion 16 one way or another, do you know what, let me backtrack for a 17 second. 18 I don't know if I asked you this. 19 With a reasonable degree of medical certainty 20 this car accident of April 11 -- April 14, 2011 was that the 21 competent producing injury of those herniated discs in the 22 cervical region -- 23 A Yes. 24 Q -- that you operated on. 25 MR. KAMINSKY: Objection. Dr. Merola - Voir Dire 529 1 THE COURT: Just as to form. 2 Q Doctor, do you have an opinion one way or another 3 whether trauma from this automobile accident of April 14, 2011 4 was the cause of Mr. Vidals' injuries to his neck? 5 A Yes. 6 MR. KAMINSKY: Objection. 7 THE COURT: Again. 8 Q Tell us what your opinion is, regarding the car 9 accident and Mr. Vidals's injuries? 10 MR. KAMINSKY: Objection. 11 THE COURT: Do you have an opinion as to what 12 competent producing cause of the injuries were? 13 THE WITNESS: Yes. 14 THE COURT: What was that? 15 MR. KAMINSKY: Can I have voir dire on this. 16 THE COURT: Sure. 17 VOIR DIRE EXAMINATION 18 BY MR. KAMINSKY: 19 Q How are you, Doctor. 20 A Good, thank you. 21 How are you. 22 Q Doctor, you were provided materials by the plaintiff's 23 attorney to review before testifying. 24 Correct? 25 A Yes. Dr. Merola - Voir Dire 530 1 Q Various medical records, deposition transcripts, 2 things like that? 3 A Yes. 4 Q Were you also provided with a copy of a report by a 5 biomechanical engineer? 6 A Let's see if I have that. 7 I just want to check the reports I have. 8 Q As you sit here today, do you recall reading a report 9 by a biomechanical engineer? 10 A No. 11 Q Are you a biomechanical engineer? 12 A I have training in biomechanics, and done biomedical 13 research on the spine, yes. 14 Q And did you do a biomechanical analysis of the force 15 of the impact of this car accident? 16 A No. 17 Q Do you know the rates of speed that the cars were 18 travelling? 19 A No. 20 Q Do you know the extent of damage to the vehicles? 21 A I do know that there was extensive damages to the 22 vehicles, yes. 23 Q Extensive damage to the vehicles? 24 A Yes. 25 Q Would your opinion change in any way if there was not Dr. Merola - Voir Dire 531 1 extensive damage to the vehicles, just yes or no, or you don't 2 know? 3 A No. 4 Q Okay. 5 And do you know the delta force of the impact 6 upon Mr. Vidals as a result of this accident? 7 A No, I haven't calculated that. 8 Q Is that something that would be important, yes or no, 9 in determining a causal relationship between an accident and an 10 alleged injury; yes or no. 11 A No. 12 Q And do you know if Mr. Vidals received treatment at 13 the scene? 14 A Was he treated at the scene? 15 He did have treatment afterwards. 16 Q I'm asking you if he received treatment at the scene. 17 A I know that there's an ambulance call report I had an 18 opportunity to look at. 19 Q What did that ambulance call report? 20 A I would have to take a look at it. 21 Q Go ahead. 22 Tell us what is there. 23 A (Perusing.) 24 Q When he was taken away by the ambulance, tell us what 25 happened? Dr. Merola - Direct 532 1 A Sure, I just want to pick that up. 2 Hold on one second. 3 I have the police accident report. 4 Q And how does the police accident report -- 5 THE COURT: He has not answered your last 6 question. 7 A Yeah, I'm just looking if I see the ambulance report. 8 I don't see it in my records. 9 Q Let's skip the ambulance call report for now. 10 Let's look at the police report. 11 Would you agree with me that the police report 12 says, "no injuries"? 13 MR. ROSENBERG: Judge, I object. He's asking 14 him to read, something, first off, that's not in 15 evidence. 16 THE COURT: Seem to be getting beyond voir dire 17 and more into cross. 18 MR. KAMINSKY: I renew my objection to his 19 testimony on causation. 20 THE COURT: All right. Overruled. 21 You can answer, Doctor. 22 A What was, I'm sorry what was I going to answer. 23 THE COURT: Your opinion as to causation with a 24 reasonable degree of medical certainty. 25 THE WITNESS: Opinion as to causation to a Dr. Merola - Direct 533 1 reasonable degree of medical certainty, given the medical 2 facts of what happened to Mr. Vidals, and my treatment of 3 him, and the records that I've been able to review within 4 a reasonable degree of certainty the car accident of April 5 2011 caused the injury to the neck that subsequently 6 required surgery. 7 Q Doctor, I want you to assume that there was no 8 ambulance that came, and I want you to assume that Mr. Vidals 9 testified that he waited two days before he went for treatment. 10 Does that change your opinion about any of what 11 you just testified to today? 12 A No. 13 Q Tell the jury why. 14 A So, when you have a disc, there are different, there's 15 a spectrum of injury that can occur. 16 You can have an injury whereby you have an acute 17 fracture to the point where you can't move your arm or leg, or 18 have a structured spine which causes paralysis. 19 And, clearly, at that point in time if you can't 20 move, you have a horrible injury. 21 There's an injury that can occur to the discs 22 whereby the annuli that is those outer discs are torn. 23 That tear manifests itself over time as pressure 24 on the spine, produces the leakage of your nuclear material, 25 those herniated discs. Dr. Merola - Direct 534 1 That usually manifests itself over the course of 2 time. 3 Often times in traumatic situations where you 4 don't have an immediate paralysis or an immediate fracture, the 5 patient is excreting certain substances, what is known as 6 adrenocorticotropic hormone, epinephrine, which suppresses pain 7 and suppresses symptoms over time. 8 So when we see patients, for example, in the 9 emergency room, we don't just see them in the emergency room; 10 we treat them. 11 MR. KAMINSKY: Objection, your Honor. Move to 12 strike. 13 A Getting complicated I know, sorry. 14 THE COURT: Let's stick with focus of this case. 15 THE WITNESS: Okay. 16 A So, no, it's not unusual to manifest pain over the 17 course of time, depending on what the type of pain is and where 18 you are on the spectrum of injury. 19 Q His injury, does that fit into what you just said? 20 A Yes. 21 Q Doctor, just to bring up something that Mr. Kaminsky 22 just asked you about, tell the jury why it wouldn't matter 23 about the speeds of the cars? 24 A So the speeds of the cars would be relative to what is 25 happening to the actual objects themselves, but you have to Dr. Merola - Direct 535 1 know what's happening to the person that is on the inside of 2 the car itself. 3 And getting back to the mechanism of injury for 4 disc herniation, we're talking about that unintended or 5 superphysiologic range of motion that your cartilage components 6 can no longer tolerate. 7 When you exceed that, that's where you have disc 8 failure. 9 So, what's happening to the person inside the car 10 does not necessarily completely and always correlate to what's 11 actually happening to the external objects or the cars. 12 Q I think I was up to asking you now about the future 13 for Mr. Vidals regarding pain medication. 14 What does the future with a reasonable degree of 15 medical certainty bode for him for that? 16 A So Mr. Vidals is presently seeing a pain management 17 physician. 18 I usually defer to pain management in terms of 19 medications. 20 This is a gentleman who, because of his chronic 21 pain, will likely require continued pain care and pain 22 management. 23 Q Doctor, are there other alternatives to taking 24 medication to alleviate pain? 25 A Yes. Dr. Merola - Direct 536 1 Q Tell the jury what those other options are, 2 specifically, for Mr. Vidals? 3 A So, the options for long-term or chronic pain include 4 two different options. 5 But they're both implantable devices. And by 6 implantable devices, devices that require surgical placement. 7 One is a pain pump whereby itself taking pain 8 medicine by mouth, this will deliver pain medication. 9 And the other is what's known as a spinal cord 10 stimulator electrical device that's used in order to decrease 11 pain. 12 Those are implantable devices that are battery 13 operated. And they involve the insertion of either a catheter 14 in, to deliver medication or an electrode to stimulate the 15 spine in order to decrease pain. 16 Q What are the costs associated with those implants? 17 A Those implants, the implants themselves and placement 18 of the implants run in the neighborhood of about $50,000 or 19 so. 20 Q Besides, I think, I think MRI and CAT scans and 21 x-rays. 22 Will Mr. Vidals need that in the future, and if 23 so, how often and what are the costs associated with that? 24 A So, reasonably, if you are looking at following those 25 adjacent segments over the course of time, you are generally Dr. Merola - Direct 537 1 going to get an x-ray about every year or so, year and-a-half. 2 MRI's, every two years is reasonable. 3 Depending upon how they are clinically doing. If 4 they're getting worse earlier, then you get a study done 5 earlier. 6 Q And will that be for the rest of his life? 7 A Yes. 8 Q Doctor, any other costs. You know what, give me a 9 second. 10 When Mr. Vidals again with a reasonable degree of 11 medical certainty, is in his 60s and then beyond, in his 70s, 12 what will he need, in terms of home care or care? 13 MR. KAMINSKY: Objection. 14 THE COURT: May we have a side bar. 15 MR. ROSENBERG: Sure. 16 (Discussion at the side bar out of the hearing 17 of the jury.) 18 Q Doctor, with a reasonable degree of medical certainty, 19 will Mr. Vidals need home care? 20 MR. KAMINSKY: Objection. 21 THE COURT: Rephrase it. Lay the foundation 22 first. 23 Q With a reasonable degree of medical certainty, do you 24 have an opinion whether or not Mr. Vidals will need home care? 25 A Yes. Dr. Merola - Direct 538 1 Q Tell the jury what your opinion is and what do you 2 base that on? 3 A So -- 4 MR. KAMINSKY: Objection. 5 THE COURT: Overruled. 6 A With a normal aging process as time goes on after 7 having had the fusion for the problem that Mr. Vidals has, as 8 he ages, particularly somewhere in the area of about 60 or so, 9 he will require some assistance at home with, for example, 10 activities of daily living because of pain, and restrictions in 11 range of motion. 12 Q What will happen, do you have an opinion one way or 13 another when he's in his 70s, what kind of care he will need, 14 if at all? 15 A So, that, the period of time that he would require 16 home care at the age of 60 would be less than the period of 17 time that he would require home care at the age of 70. 18 He would require increasing amounts of care over 19 the course of time as he becomes progressively more unable to 20 do things on his own. 21 Q Doctor, can you tell the jury what your 22 recommendations were for Mr. Vidals, in terms of his daily 23 living? 24 First of all, did you tell him what he should do 25 and shouldn't do and if so what is that? Dr. Merola - Direct 539 1 A So, the basic restrictions for this kind of thing are 2 to avoid repetitive motion to the neck and the back because the 3 more repetitive motion you have the more wear and tear there 4 is. 5 We want to avoid repetitive motion. 6 We want to avoid activities that put excess 7 stress on the spine; that is, activities that put you into a 8 bending forward position and that cost twisting of your neck 9 and back and activities whereby you need to lift anything over 10 say 15 pounds or so. 11 Q Did you tell him specifically what activities he 12 shouldn't be doing? 13 A So, you know, I generally tell them those are the 14 types of activities I would restrict them from. Because there 15 are so many activities you do around the house that involve 16 those types of things. 17 It's sometimes difficult to do it on a specific 18 case-by-case basis. 19 But if you give a patient your overall do's and 20 don'ts they can accommodate that to what they have to do at 21 home. 22 Q Did you do that in Spanish? 23 A Yes. 24 Q Doctor, with a reasonable degree of medical certainty, 25 do you have an opinion one way or another whether or not as a Dr. Merola - Direct 540 1 result of this accident Mr. Vidals sustained a permanent loss 2 of use of a body function, organ or member? 3 MR. KAMINSKY: Objection. 4 THE COURT: Side bar. 5 (Discussion at the side bar out of the hearing 6 of the jury.). 7 THE COURT: Members of the jury, we're going to 8 take a five-minute recess. 9 Ask you not to discuss the case among yourselves 10 because you have not heard all the testimony yet. 11 (Jury excused.) 12 THE COURT: Doctor, you can step down. Just 13 don't go too far. 14 THE WITNESS: Okay. 15 (Pause in proceedings.) 16 THE CLERK: Be seated. All parties are present. 17 All jurors are present. 18 (Jury entered the courtroom.) 19 MR. ROSENBERG: Can we have the last question 20 read back. 21 THE COURT: Read it back. 22 (Record read.) 23 MR. KAMINSKY: I object. 24 THE COURT: You have an exception to my ruling. 25 Do you have an opinion, Doctor? Dr. Merola - Direct 541 1 THE WITNESS: Yes. 2 THE COURT: What is that opinion? 3 THE WITNESS: That he has sustained a loss of 4 use that is permanent to a body system. 5 Q And that system being? 6 A His musculoskeletal and neurological system. 7 Q Doctor, with a reasonable degree of medical certainty, 8 as a result of this accident, do you have an opinion whether or 9 not Mr. Vidals sustained a significant limitation of the use of 10 a body function or system? 11 MR. KAMINSKY: Objection. 12 THE COURT: Overruled. 13 But you have an exception. Do you have an 14 opinion? 15 THE WITNESS: Yes. 16 Q What is that opinion, and what do you base it on? 17 A That he has sustained a loss of use and that is based 18 upon my examination of Mr. Vidals and my treatment of him. 19 Q And going back to the word "significant" limitation 20 that was what I had asked you did he sustain a significant 21 limitation to a body function, or system? 22 A Yes. 23 Q And what is that significant limitation? 24 MR. KAMINSKY: Objection. 25 THE COURT: Overruled. Dr. Merola - Cross 542 1 A He has a loss of neurological function to the C5, 2 fifth nerve root and sixth nerve root distributions of his arms 3 and hands, and in addition to loss of range of motion in his 4 cervical spine. 5 Q And I used the word "significant." 6 Doctor, what is significant? 7 A "Significant" means that he has a loss of sensation, 8 loss of reflexes, and he has a significant loss of range of 9 motion. 10 Q Doctor, with a reasonable degree of medical certainty 11 as a result of this accident, do you have an opinion one way or 12 another, whether or not Mr. Vidals sustained a permanent 13 consequential limitation of the use of a body organ or member, 14 and, if so, what is that opinion? 15 MR. KAMINSKY: Objection. 16 THE COURT: Overruled. 17 But you have an exception, counsel. 18 A Yes. 19 And that opinion is that he has sustained a 20 significant consequential loss. 21 MR. ROSENBERG: Judge, I'm done. 22 THE COURT: Mr. Kaminsky. 23 CROSS-EXAMINATION 24 BY MR. KAMINSKY: 25 Q Good afternoon again, Doctor. Dr. Merola - Cross 543 1 A Good afternoon. 2 Q I've had the pleasure of cross-examining you several 3 times. 4 Correct? 5 A Yes. 6 Q In addition to that, you've been involved in, 7 probably, you and I have probably been involved in dozens of 8 other cases. 9 Correct? 10 A I would say over the course of many years, yes. 11 I'm sure we have been. 12 Q Those are all cases where you have been retained by 13 plaintiff's attorneys. 14 True? 15 A As a treating doctor, yes. 16 Q You just told us that the plaintiff should avoid 17 repetitive motions. 18 Correct? 19 A Yes. 20 Q And repetitive motions would be things like bending, 21 lifting, carrying, all those type of things. 22 Correct? 23 A On a repetitive basis, yes. 24 Q And, in fact, those are the very things that 25 Mr. Vidals did for 25 years before your surgery. Dr. Merola - Cross 544 1 True? 2 A Yes. 3 Q He spent 25 years in construction, some in Mexico, 4 some in the United States using heavy equipment, lifting, 5 carrying, bending, climbing all those things which he described 6 as heavy manual labor, and did all these things in the capacity 7 of a gardener. 8 You are aware of that, aren't you? 9 A True. 10 Q Those are the very types of things that can cause the 11 degenerative changes? 12 A In some cases they can, yes. 13 Q And you reviewed all the plaintiff's past work 14 history, you have asked him about it, and you are aware that in 15 fact those are the very things that he did for 25 years, almost 16 his entire adult life on a day-to-day basis before your 17 surgery. 18 True? 19 A Before the accident, yes. 20 Q So now you are saying he shouldn't do any of those 21 things. 22 Is it your testimony that he should just sit at 23 home all day and watch T.V.? 24 A No. 25 Q Would you agree with me, or do you know, is he able to Dr. Merola - Cross 545 1 sit for periods of time? 2 A Yes, so. 3 Q Yes or no? 4 A Yes. 5 Q Again, I am going to ask you yes or no questions if 6 you can. 7 Okay. 8 A Yes. 9 Q Is he able to to your knowledge is he able to sit for 10 extended periods of time? 11 Just yes or no, or you don't know? 12 A I don't know how we would define extended. 13 Q Hours at a time, without, of course, getting up to go 14 to the bathroom, or whatever is it he capable of sitting for 15 hours at a time? 16 A He can sit, yes, and -- 17 Q And do you know if he's able to stand for periods of 18 time? 19 A He can stand for periods of time, yes. 20 Q And do you know if he's able to walk for periods of 21 time? 22 A He can walk as well, yes. 23 Q So, in fact, you would recommend that he do these 24 things to help his overall health. 25 Correct? Dr. Merola - Cross 546 1 A Yes. 2 Q It would be a good idea to get whatever exercise you 3 can and walk and go outside, and do those things, you are not 4 suggesting he just sit home all day and do nothing. 5 Correct? 6 A Correct. 7 Q In fact, doing those things would also help him from 8 an emotional standpoint. 9 Correct? 10 A Yes. 11 Q Because nobody wants to sit home all day and do 12 nothing. 13 Correct? 14 A Yes. 15 Q So if in fact he did go outside and walk and did those 16 things you would agree that it would improve his overall 17 physical condition. 18 Yes? 19 A To within his limitations yes. 20 Q And it would also improve his overall emotional 21 condition? 22 A Yes. 23 Q And it would also improve his prognosis to an extent 24 for the future. 25 Correct? Dr. Merola - Cross 547 1 A It would be a good thing for him as much as he could 2 tolerate, yes. 3 Q And you gave us some figures for future revision 4 surgery. 5 You said a future revision surgery, including the 6 hospital stay, and the anesthesiologist, and the cost of the 7 surgery itself would be approximately 75,000. 8 Correct? 9 A Yes. 10 Q Isn't it true that the original surgery you did on his 11 neck, your fee, was $11,984. 12 Yes or no. 13 A That -- 14 Q Just yes or no? 15 Would you like me to show you the records and 16 refresh your recollection? 17 A No. 18 MR. ROSENBERG: Objection, Judge. 19 THE COURT: Overruled. 20 A Yes. 21 Q And the hospital fee, was, including the 22 anesthesiologist was $9,500. 23 Correct? 24 A Although the hospital should be straight of separate 25 from anesthesia. Dr. Merola - Cross 548 1 Q I'm combining them for purposes of this question, 2 total fees. 3 The total fee for the original surgery that you 4 did, including all the things you told us about, the hospital 5 stay, the anesthesiologist your costs as a surgeon, the 6 attending surgeon, everything, okay, came to $21,492. 7 True? 8 True? 9 A Yes. 10 Q Okay. 11 Do you have a file with you? 12 A Yes. 13 Q I am going to ask if, do you think you'll need it. 14 How would you know if you are going to need it. 15 (Laughter.) 16 Q Take that question about. 17 How about if Mr. Datny looks at your file, if you 18 need it, we'll give it back to you, all right. 19 THE COURT: Officer, bring the file to defense 20 counsel. 21 Q Thank you, Dr. Merola. 22 Q Dr. Merola, could you tell the jury as a result of 23 this accident, did the plaintiff suffer any broken bones, yes 24 or no? 25 A No fractures. Dr. Merola - Cross 549 1 Q And the accident occurred on April 14, 2011. 2 Correct? 3 A Yes. 4 Q And you performed your surgery on July 15th. 5 Correct? 6 A I believe it was July 20th. 7 Q July 20th. 8 Let me just double-check, because this is 9 important. 10 You first saw him on July 15th. 11 Correct? 12 A Yes. 13 Q And you did the surgery five days after you saw him? 14 A I think the operative report, we have to check the 15 date on the operative report. 16 Q Let me do that. 17 Yes, July 20. 18 So we have a time frame the accident happened on 19 April 11th. 20 You saw him on July 15th. 21 And five days later you did the surgery? 22 A Correct. 23 Q So you did the surgery, doing some quick math here, 24 almost 100 days after the accident. 25 Correct? Dr. Merola - Cross 550 1 A Correct. 2 Q And for the 100 days prior to the surgery, are you 3 aware if he worked during that time? 4 A No, I don't have that work record. 5 Q Are you aware he did return to work after the 6 accident? 7 A I didn't review his work record for those 100 days, 8 no. 9 Q Do you know if he performed his daily activities 10 during that time? 11 A I didn't observe him performing activities at that 12 time, no. 13 Q I'm asking if you know. 14 A No. 15 Q I'm asking you for the 90 days in the time of the 16 accident, all my questions pertain, I'm sorry, all my questions 17 pertain to the 100 days from the day of the accident up until 18 the day you did your surgery. 19 Do you know if he performed his normal day-to-day 20 activities, yes or no? 21 A I don't know if he actually did or did not, no. 22 Q And you've already answered but to be clear for those 23 100 days, do you know if during a portion of that time he 24 returned to work? 25 A No, I don't have that work record so I haven't seen Dr. Merola - Cross 551 1 that. 2 Q Do you know if during that time he drove a car? 3 A I don't know, no. 4 Q Do you know if during that time he took care of 5 himself as far as getting dressed and feeding himself and 6 performing his routine daily activities during that time, do 7 you know? 8 A I don't know. 9 Q I believe you also mentioned something about a nerve 10 root problem, as opposed to a cervical problem? 11 Do you remember, did I catch it correct? Just 12 explain that to me again. 13 A I think we talked about, there's several different 14 problems. 15 One is a spinal cord. 16 And one is nerve root. 17 Q That's what I want to talk to you about the nerve root 18 problem. 19 Do you know what an EMG is? 20 A Yes. 21 Q Please tell the jury what an EMG is? 22 A An EMG is a test that looks at the way your muscles 23 behavior, in terms of how the nerves are interacting with your 24 muscles. 25 EMG means, "E" for electro; "M" means myographic; Dr. Merola - Cross 552 1 Study. 2 Also known as a nerve conduction velocity or NCV. 3 Usually called an EMG NCV. 4 Q And you told us and this is a quote, that when you saw 5 Mr. Vidals he had complaints of pain to his hands due to, you 6 determined, nerve root irritation and compression? 7 A Yes. 8 Q And one way to check the cause of that potential pain 9 is to do an EMG study. 10 Correct? 11 A Yes, and no. 12 Q Okay. 13 Well, an EMG study was in fact conducted, 14 correct? 15 A Yes. 16 Q And did you have a chance to review the EMG report 17 that was conducted of the plaintiff, that was performed on Mr. 18 Vidals on June 14, 2011? 19 A Yes. 20 Q Would you agree with me that, and this is to check if 21 there's nerve root problems, this has nothing to do with the 22 spine, correct? 23 A Well, it. 24 Q Just yes or no or you can't really say yes or no? 25 A Yeah, it is not that, simple a yes or no. Dr. Merola - Cross 553 1 Q Well, then let's look to see if we can determine if 2 the cause of his pain was due to cervical issues or whether it 3 was due to nerve problems. 4 I am going to ask you some questions about this 5 EMG report. 6 All right. 7 This was a, first of all how do you do an EMG 8 study? 9 A So, EMG studies are done by the electromyographer; 10 they can either be a technician or neurologist or physiatrist. 11 Q This is not something that's painful, by the way? 12 A It is painful. 13 Q Go ahead. 14 Tell us what is done? 15 A So, there are actually two ways to do it. One is a 16 needle EMG whereby needles are inserted into the muscles. And 17 then electrical current is run through the nerves and then you 18 pick up the electrical response at the other end which is where 19 the needle is. 20 Q I guess I should say it is not pleasant. But there's 21 studies that are done to check the nerves? 22 A This study specifically looks at whether or not 23 there's significant long-term dysfunction to the way the nerves 24 function with respect to the muscles. 25 Q Okay. Dr. Merola - Cross 554 1 And here, what we had the results of the EMG that 2 was done on in Mr. Vidals on June 14, 2011, it says: "There is 3 evidence of an acute denervation limited to the right cervical 4 muscles." 5 You are aware of that, correct? 6 A Yes. 7 Q And then the person who performed the test gave what's 8 called an impression. 9 That's their interpretation of the printout from 10 the test. 11 Right? 12 A Yes. 13 Q And it says it's an abnormal study. 14 It says the study is consistent with, I'm sorry. 15 It says there's evidence of moderate median neuropathy at the 16 wrist bilaterally more on the left side. 17 You agree with that, correct? 18 A According to that report, yes. 19 Q And this report says that that's consistent with 20 carpal tunnel syndrome, correct? 21 A Buy report, yes. 22 Q And carpal tunnel syndrome can cause pain, correct? 23 A Carpal tunnel syndrome generally causes pain in the 24 palm of the hands. 25 Q Yes. Dr. Merola - Cross 555 1 And there can be pain that can radiate, correct? 2 A No. 3 Q Well, it said there's carpal tunnel syndrome at the 4 left side, primarily, at the left side. 5 True? 6 A By that report, yes. 7 Q And have you ever testified that an EMG test is useful 8 in determining cervical pain? 9 A I think you parsed some of the words from prior 10 testimony. 11 But the -- I think if you looked at the context 12 of that testimony, it would say an EMG can be useful in helping 13 to determine the cause for cervical problems particularly when 14 the diagnosis is in question. 15 Q Okay. 16 Do you find this EMG report, in this case helpful 17 or not helpful? 18 A I find that the EMG is helpful. 19 Q Okay. 20 Now, I just want to touch upon the question of 21 trauma versus degeneration, okay. 22 Trauma is something that is, happens acutely, 23 correct? 24 A Yes. 25 Q And degeneration is something that happens over time? Dr. Merola - Cross 556 1 A Yes. 2 Q And as someone ages you've already told us you would 3 expect a certain amount of degeneration. 4 Correct? 5 A Correct. 6 Q And would you expect that that amount of degeneration 7 could be exacerbated by what someone does for a living? 8 A Yes. 9 Depending upon what your occupation is you could 10 see more degenerative changes, yes. 11 Q Would you expect to see more degenerative changes in 12 someone that did an entire adult lifetime of heavy manual 13 labor? 14 A You can, yes. 15 Q Now, in -- you described the type of surgery that was 16 done, and you called it, in your operative report, an interior 17 cervical discectomy at C4-5, and spinal fusion at C4-5, 18 correct? 19 A Part of it, yes. 20 Q And just, in layman's terms, what it means, a 21 comparison that's basically the surgery that Peyton Manning 22 had, correct? 23 A Actually Peyton Manning that was the third surgery he 24 had. 25 Q Correct. Dr. Merola - Cross 557 1 Peyton Manning has that had three of these 2 surgeries? 3 A Though he had a single level, correct. 4 Q How many of these surgeries have you performed? 5 A In the last 16 years, quite a number. 6 Q Thousands? 7 A Thousands. 8 Q And is it your opinion that all those thousands of 9 people you did cervical fusions are can never work again for a 10 day in their life? 11 A No. 12 Q Some of them can, some can't? 13 A Yes. 14 Q Is it your testimony that Mr. Vidals is completely 15 incapacitated from any type of employment, in any field for the 16 rest of his life? 17 Yes or no. 18 A I can't answer that just yes or no. 19 Q If there were, now you would not clear him to return 20 to work to do any heavy labor I would imagine, correct? 21 A Correct. 22 Q That would be wrong on your part to do that given his 23 surgery? 24 A Yes. 25 Q But, what about something that didn't require heavy Dr. Merola - Cross 558 1 manual labor, would you be open to the possibility of his 2 returning to the work force in such a capacity, yes or no? 3 A Provided he could get off the pain medications, yes. 4 Q So you would, if he could get off the pain 5 medication? 6 MR. ROSENBERG: He answered it already. 7 Q Now, would you agree that we're in a vicious cycle 8 with the pain medication, because the pain medication makes him 9 tired? 10 A Correct. 11 Q Would you also agree with me, that a person can 12 develop an immunity to the pain medications? 13 A A person can develop some tolerance to pain 14 medication, yes. 15 Q And in fact, the, what type of pain medication is he 16 taking? 17 A I believe right now he's on, I think he's on Dilaudid 18 which is a narcotic pain medication right now. 19 Q Is it an opiate? 20 A Correct, yes. 21 Q And there are studies that show that people become a, 22 their bodies adjust and become tolerant of the opiates so the 23 opiates have no effect in alleviating the pain. 24 Correct? 25 A They can become opiate tolerant, yes. Dr. Merola - Cross 559 1 Q So he's basically taking pain medication that makes 2 him tired but does nothing to help him with the pay 3 potentially? 4 A That is a potential. 5 Q Yet you are prescribing he do this for the rest of his 6 life, correct, yes or no? 7 A No. 8 Q And is it possible then that if he was taken off the 9 pain medication there would be no change in his level of pain 10 but he would be less tired? 11 MR. ROSENBERG: Objection. Is it possible. 12 THE COURT: Overruled. 13 A Is it possible if he were taken off of the pain 14 medication. 15 Q Yes/? 16 A You would have to come with an alternative to try to 17 decrease his pain. 18 Q Okay but if he's immune. If his body has developed an 19 immunity. First of all we wouldn't have known if his body 20 developed an immunity to the pain medication unless you took 21 him off it and found out? 22 A Actually that's not quite true. 23 Q Okay. 24 But do you know if, would you agree with me then 25 that if he was taken off the pain medication, we know for sure, Dr. Merola - Cross 560 1 he would be less tired. Correct? 2 A If he were, well he wouldn't have the somnolent 3 effects of the pain medication. 4 Q Which would mean he would be less tired? 5 A But he would still have the pain. 6 Q I am not trying to be difficult? 7 A No, I understand. 8 Q Just trying to ask a simple question. You told us the 9 pain medication makes him tired? 10 A That is a side effect of pain medical occasion. 11 Q So if we took him off the pain medication could we 12 safely conclude he would be in theory less tired? 13 A From the effects of the pain medication. 14 Q Okay. 15 And can we also conclude if he were less tired, 16 that would be one factor that you would consider in whether or 17 not you would clear him to return to work in some sedentary 18 capacity, true? 19 A That is a factor. 20 Q Okay. And so if a job were available, for instance 21 that required him to answer the phone, okay, there's no reason 22 you wouldn't medically clear him to take that job, right? 23 A Under what circumstances, though? 24 Q Well, any circumstances, sitting at a desk, working 25 from home, sitting in an office. There's no reason you Dr. Merola - Cross 561 1 wouldn't clear him for that type of job, is there? 2 A It depends on what his physical tolerance is for his 3 neck. 4 Q Okay. Let's assume the job did not require him to do 5 any heavy lifting. There are jobs where people don't have to 6 do heavy lifting, true? 7 A Correct. 8 Q If there were a job that did not require him to do any 9 heavy lifting, and it was a said tear job sitting in an office 10 doing whatever, okay, would you consider clearing him for that, 11 yes or no? 12 A Depending upon the amount of spasm and tenderness in 13 his neck and his function without pain medications, you could 14 consider that type of vocation. 15 Q So the answer to my question is yes? 16 A The answer is potentially it's possible depending upon 17 the circumstances. 18 Q That's fair enough. 19 And your testimony as to his future medical needs 20 and his costs, those are based upon the surgery that you did 21 and the follow-up visits that you had with him correct? 22 A And my experience in taking care of patients who have 23 had this type of surgery who then go on to acquire revisions. 24 Q Of the thousands of patients that you provided this 25 surgery to, how many of them have now reached the age 60? Dr. Merola - Cross 562 1 A A fair amount, I would say, yes. 2 Q Hundreds? 3 A Unfortunately a lot of patients that have these types 4 of problems are younger. 5 Q My question is? 6 MR. ROSENBERG: Judge let him finish his answer. 7 Q It's a simple? 8 MR. ROSENBERG: Keeps trying to talk over him 9 that's not right judge let him finish his answer. He's 10 not done with his answer. 11 MR. KAMINSKY: Doesn't need an explanation. 12 Asking if it's hundreds. 13 MR. ROSENBERG: Not done with his answer. And 14 Mr. Kaminsky moved on. Can we get a full answer. 15 THE COURT: Allow him to finish his answer and 16 we'll move on to the next one. 17 A I would say over the course of years it's probably 18 into the hundreds in terms of patients that are older. 19 Q Of those patients that are of the hundreds how many of 20 them are now receiving 10 hours a day of home health care, do 21 you know? 22 A I would say, a. 23 Q Do you know? 24 MR. ROSENBERG: Give him a chance. 25 MR. KAMINSKY: Okay. Dr. Merola - Cross 563 1 A I can only tell you the ones that I, you know the ones 2 that I'm continuing to treat that do require care at home. 3 Q So there's a few? 4 A There is definitely a subset of that population that 5 does require home care. 6 Q A few? 7 A Yes. 8 MR. ROSENBERG: Objection he keeps saying a few 9 and the doctor is not saying few. 10 MR. KAMINSKY: He just said yes. 11 THE COURT: Counsel the doctor answered yes. 12 MR. ROSENBERG: To a few. 13 MR. KAMINSKY: Yes. 14 MR. ROSENBERG: That's not what he said. 15 MR. KAMINSKY: Really. 16 Read it back. 17 THE COURT: Counsel. 18 MR. KAMINSKY: Can I have the last question and 19 answer read back? 20 THE COURT: Have the last question and answer 21 read back. 22 (Record read.) 23 MR. KAMINSKY: Thank you. 24 Q And the way this trial works, you give your testimony 25 as to what the plaintiff's, what you claim his future medical Dr. Merola - Cross 564 1 needs will be. And then Dr. Schuster, do you know Dr. 2 Schuster? 3 MR. ROSENBERG: Objection. Is that a question 4 Judge. 5 THE COURT: He hasn't finished it yet. 6 Q Do you know Dr. Schuster? 7 A I believe that's the vocational, yes, person, yes. 8 Q Yes. 9 And you are aware that the person you testified 10 to, is given to Dr. Schuster to prepare what's called a life 11 care plan, correct? 12 A Yes. 13 Q And then you are aware that the information that Dr. 14 Schuster prepares is given to Dr. Smith to give economic 15 projections. You are aware of that, correct? 16 A Yes. 17 Q And so, if any of your testimony is, I don't want to 18 say incorrect, bullets if any of your testimony is modified, 19 then by the very nature, Dr. Schuster's life care plan would 20 have to be modified, true? 21 MR. ROSENBERG: Objection. 22 THE COURT: I'll sustain it. It's more 23 argument, counsel. 24 Q Well, yes, it is cross-examination. 25 THE COURT: It would be proper to ask Dr. Dr. Merola - Cross 565 1 Schuster and Smith not the reverse. 2 Q Okay. 3 If you were to change any of your opinions, would 4 Dr. Schuster therefore have to change his opinion? 5 MR. ROSENBERG: Objection. 6 THE COURT: Sustained. That's a question for 7 Dr. Schuster, which I think you actually asked him. 8 MR. KAMINSKY: Okay. 9 Q Now, if there, well, for instance, have you been 10 briefed or have you read the transcript of Dr. Schuster's 11 testimony? 12 A No. 13 Q Same for Dr. Smith? 14 A Correct. 15 Q Are you aware that they gave projections that assume 16 that Mr. Vidals can never work again in any capacity whatsoever 17 for the rest of his life? 18 A No. 19 Q If you now acknowledge that perhaps he can work in a 20 certain capacity, that that would negate all of the projections 21 of Dr. Schuster and Dr. Smith? 22 MR. ROSENBERG: Objection. 23 THE COURT: Sustained. 24 Q Now, you told us that your testimony and your opinions 25 were based on your observations of the plaintiff, the surgery Dr. Merola - Cross 566 1 you did, his injuries and the follow up treatment, true? 2 A Yes. 3 Q And you said that he's not capable of bending, lifting 4 twisting, things like that, correct? 5 A On a repetitive basis, correct, yes. 6 Q And if there was any type of evidence to show that he 7 is capable of doing that, would that potentially change your 8 opinion? 9 A On a repetitive, like I said, on a repetitive basis, 10 because he can bend, lift and twist. 11 Q He can? 12 A But to do it repetitively in order to be able to enter 13 the work force, that's what is at issue. 14 Q Okay, fair enough. 15 Do you know if the plaintiff requires any sort of 16 device to help him walk? 17 A Not at this time, no. 18 Q No cane, no walker, no walking stick, nothing like 19 that, correct? 20 A Correct. 21 Q And do you know if, do you know if any surveillance 22 was ever done? 23 A No. 24 Q Of Mr. Vidals? 25 A No. Dr. Merola - Cross 567 1 Q Did Mr. Vidals' attorney ever indicate to you that 2 surveillance was done of Mr. Vidals? 3 A No. 4 Q So you've never seen the surveillance? 5 A I have not. 6 Q Obviously but since you don't know about it you never 7 saw it? 8 A Correct. 9 Q Do you know the dates obviously, you don't but, but 10 for the record, you don't know the dates that these 11 surveillance tapes were done. 12 Correct? 13 A Correct. 14 Q And obviously you don't know what they show? 15 A Right. 16 Q Is it possible, if you saw these tapes, depending upon 17 what they showed, it could change your opinion of Mr. Vidals's 18 condition and his potential future medical needs? 19 Is that something you would be open to consider; 20 just yes or no. 21 MR. ROSENBERG: Objection. 22 THE COURT: I am going to sustain it. 23 Q You've heard the term, secondary gain and I've asked 24 his this of other witnesses. 25 Correct? Dr. Merola - Cross 568 1 A Yes. 2 Q Tell the jury your understanding of secondary gain? 3 MR. ROSENBERG: Objection. 4 THE COURT: Overruled. 5 You could answer. 6 A Secondary gain is whereby there is, there are other 7 benefits that a person or a patient can have based on what type 8 of a problem they're manifesting or what type of injury they 9 manifest to you. 10 Q So, in layman's terms, that would involve someone who 11 is involved in a lawsuit for money. 12 Correct? 13 A That could be, well secondary, yes, that can happen. 14 Patients can also manifest secondary gain in terms of what is 15 known as the sick role, whereby they achieve secondary gain 16 through familial input and things like that. There's a 17 secondary issue involved. 18 Q I should have clarified. I'm asking in the context of 19 litigation, in the context of civil litigation where one party 20 is suing another party for money, there is this recognized 21 concept that doctors such as yourself and other professionals 22 refer to as secondary gain. 23 Correct? 24 A Yes. 25 Q Because the more injured in theory the more injured Dr. Merola - Cross 569 1 someone is, the more that case is worth, correct, in theory? 2 A I guess, yes, theoretically. 3 Q Theoretically, if a person cannot ever return to work 4 in any capacity, a case is worth more than if he could return 5 to work? 6 A Yes. 7 Q And, of course, arguably the more medical costs that 8 person is going to incur in the future makes the case worth 9 that much more. 10 Correct? 11 A Yes. 12 Q And again you have to take into consideration 13 secondary gain? 14 A Yes. 15 Q You said, correct me if I'm wrong, in your report, 16 that if the plaintiff doesn't receive all this home health 17 care, as a result of this accident he's actually going to end 18 up in a nursing home. 19 MR. ROSENBERG: Objection. That's never been 20 proffered, Judge. 21 THE COURT: Could we have a side bar. 22 (Discussion at the side bar out of the hearing 23 of the jury.) 24 Q Doctor, just for the jury's benefit, in addition to 25 your office notes, you wrote a report and you addressed that Dr. Merola - Cross 570 1 report to Mr. Vidals' attorney. 2 Correct? 3 A Yeah. 4 Q And you are aware from all of the hundreds of cases 5 that you've been involved in, that involved plaintiffs in 6 lawsuits, you are aware that that report has to be exchanged by 7 plaintiff's attorney, and I get a copy of it. 8 A Yes. 9 Q So you knew what you were writing was going to make 10 its way to the defendant's attorney? 11 A Yes. 12 Q And in your report, tell me -- do you have one of 13 those hammers? 14 A Might want too see if this thing will help. 15 (Pause.) 16 MR. ROSENBERG: Judge, could we approach for a 17 second. 18 (Discussion at the side bar out of the hearing 19 of the jury.) 20 MR. KAMINSKY: Can I ask my question, Judge. 21 THE COURT: Yes. 22 Q In your report, did you not state that, unless, I'm 23 paraphrasing, that you unless Mr. Vidals receives this home 24 health care, projected out into the millions of dollars in 25 cost, if he doesn't get it he's going to end up in a full-time Dr. Merola - Cross 571 1 nursing facility, yes or no? 2 MR. ROSENBERG: Objection. 3 THE COURT: Instead of paraphrasing, why doesn't 4 he just read it to him then then we will avoid it then. 5 I'm objecting to the question. 6 THE COURT: You have to get there we'll get 7 there. 8 Overruled. 9 THE WITNESS: Can I look at the report to 10 refresh my recollection, please. 11 THE COURT: Yes. 12 (Handing). 13 MR. KAMINSKY: I'll just -- 14 MR. ROSENBERG: Can he get his file back. 15 MR. KAMINSKY: You can have your file back. 16 THE COURT: Let's move on. 17 MR. KAMINSKY: It's the last sentence. 18 THE WITNESS: Thank you. 19 (Handing.) 20 A Okay. 21 Q Yes, did I sufficiently paraphrase it to your 22 satisfaction, or no? 23 A No. 24 Q Okay. 25 Then I'll read it word for word. Dr. Merola - Cross 572 1 This home care coupled with the care of his wife 2 should be sufficient to avoid full-time care in a nursing 3 facility. 4 Is that what you wrote? 5 A Yes. 6 Q So, in other words, if he doesn't get this care, he's 7 going to end up in a nursing facility, yes or no? 8 A No. It means that if he's -- 9 Q Your answer is no? 10 A Okay. 11 Q By the way, this subset, let's go back to the subset 12 of people that you have performed this surgery on, you said a 13 few of them have home health care. 14 Of that few, how many are in a nursing facility, 15 if you know of any? 16 A I know I answered a few but one the reasons I didn't 17 go on is because. 18 Q Listen to my -- 19 MR. ROSENBERG: Again, cutting him off. 20 MR. KAMINSKY: I would like the doctor to answer 21 my question. 22 THE COURT: He was answering your question. 23 Reask the question. 24 You go on, on redirect. 25 Q Out of the hundreds of people you've performed a neck Dr. Merola - Cross 573 1 fusion on, are now living in a nursing facility, if you know? 2 A I can't give you an exact number. 3 Q Would it be more than five? 4 A I can't give you an exact number. 5 Q Would it be more than two? 6 A It depends on what type of spinal cord injury they 7 had. 8 Q Would it be any? 9 A It would be patients, and it would be patients with 10 myelopathic spinal cord injuries. 11 Q So, potentially Mr. Vidals would be the very first? 12 A No. 13 Q Lets's go over, by the way we mentioned the type of 14 work he did, that could cause degenerative problems in his 15 spine. 16 The work he did could also cause carpal tunnel 17 syndrome. 18 True? 19 A Yes. 20 Q And that's a painful condition. 21 Correct? 22 A It's, it could be pain. It could be manifested as 23 pain in the hands. 24 Q And it was confirmed that through that EMG he had 25 carpal tunnel syndrome? Dr. Merola - Cross 574 1 A Actually he had EMG evidence of median nerve 2 dysfunction at the wrist. 3 When you say carpal tunnel syndrome that's a 4 clinical syndrome. 5 It has to be correlated with the EMG. I know the 6 EMG says consistent with carpal tunnel syndrome but that's a 7 clinical correlation. 8 Q You've answered it, says consistent with carpal tunnel 9 syndrome. 10 Now, the report you wrote setting forth all of 11 your opinions and what he needs and things like that, that was 12 dated March 11 of 2013. 13 Correct? 14 A Yes. 15 Q 8 months ago? 16 A Yes. 17 Q And so your, have you done anything since March 6 of 18 2013 to change or modify your opinions in any way? 19 A I don't believe so, no. 20 Q I am going to go chronological, just briefly, first 21 time you saw him July 15th, he came in with an MRI that you 22 felt was not sufficient in quality so you ordered another MRI? 23 A Yes. 24 Q And it says result of that second MRI you deemed it 25 necessary to do surgery? Dr. Merola - Cross 575 1 A It's the MRI correlated with his physical findings, 2 yes. 3 Q Would you agree with me that when you did your 4 surgery, there were no complications? 5 A Correct. 6 Q And would you agree with me that your surgery was 7 successful? 8 A Yes. 9 Q And would you agree with me that your surgery indeed 10 alleviated a lot of his symptoms? 11 A Yes. 12 Q And would you agree with me that the pain he claimed 13 that he was experiencing before the surgery you did an 14 excellent job treating? 15 A In terms of preventing he his nerves from getting 16 worse, yes. 17 Q And in fact, if you look at the follow-up records, the 18 first one being July 29, 2011 it says neurological status is 19 stable. That's a good thing correct? 20 A Yes. 21 Q And it says, everything from swallowing is intact, to 22 there is no evidence of DVT. 23 Tell the jury again what that is? 24 A DVT is a blood clot in your legs. 25 Q So he's alert he's oriented. Dr. Merola - Cross 576 1 Mentation and effect are appropriate. Gait is 2 bilateral head to toe. Reciprocal. All these things are for 3 lack of a better term these are good findings these are things 4 you want to see correct? 5 A Yes. 6 Q They're indicative of a successful surgery, with 7 progress, thereafter? 8 A Correct. 9 Q And he came back to see you on September 9, 2011 and 10 again you did a physical examination and your physical 11 examination, again, it showed that neurological status is 12 stable. Correct? 13 A Yes. 14 Q So his neurological system, would you, well first of 15 all, I am going to ask you to take 15 years of schooling and 16 tell us in 15 seconds, about what the neurological system is? 17 A Your brain, your spinal cord, and your nerve roots. 18 Q And so, all those things as a result of your 19 examination on September 9, 2011, they were good? 20 A They were stabilized, yes. 21 Q Which is, again, in layman's, way of looking at 22 things, these are all good findings. These are findings that 23 you as the surgeon who performed this procedure on Mr. Vidals, 24 these are things you would want to see? 25 A Yes. Dr. Merola - Cross 577 1 Q And if we go to your next follow-up visit on December 2 2nd 2011, upward extremities remain stable to his postoperative 3 status again that's something you want to see pcorrect? 4 A Yes. 5 Q Neurological system is intact. And that's again, 6 consistent with his follow-up visits, what the findings are, 7 what you as his caregiver, his doctor, these are good findings 8 correct? 9 A Yes. 10 Q And then you saw him on June 29, 2012. 11 So at this point as you told us his visits to you 12 are becoming more infrequent, correct? 13 A Yes. 14 Q You saw him twice before the accident once to review 15 the films and once to discuss the surgery with him, sorry twice 16 particular the surgery, you saw him once to do the first time 17 to look at the films, then he came back again after you saw 18 second films and discussed surgery then you did the surgery and 19 then you had a series of follow-up visits roughly 6 or 7, 20 correct? 21 A Yes. 22 Q And that's the full extent of your involvement with 23 Mr. Vidals? 24 A Yes, as my treatment for him. 25 Correct. Dr. Merola - Cross 578 1 Q And these follow-up visits how long did they last? 2 A Depends on the amount of stuff I did within the visit 3 itself. 4 Q Can you give us, don't guess but give us your best 5 approximation typically how long would they last? 6 A Those visits, I mean they can last anywhere between 7 7 to 10 to 15 minutes depending on how long the exam takes and 8 whatever we spoke about during the course of the exam. 9 Q Let's take on average 10 minutes okay. So you saw him 10 six or 7 times after the accident. All told, following the 11 accident, you have been in his presence for approximately an 12 hour? 13 A With surgery and hospital care. 14 Q Obviously you did the surgery. But subsequent to the 15 surgery, all told, you have been in his presence for about an 16 hour? 17 A I guess if we added them up in terms of minutes, yes. 18 Q And the next time you saw him, after December 2nd, 19 2011, was six, 7 months later, June 29, 2012, did a physical 20 examination during that 7 to 10 minutes or so. And again, it 21 said, you wrote down, cervical intervention has been successful 22 in preventing further neurological deterioration. 23 Correct? 24 A Yes. 25 Q And that's a good thing? Dr. Merola - Cross 579 1 A Yes. 2 Q And you wrote down that physical findings showed that 3 his mentation, his effect are appropriate. His gait is 4 bilateral, head to toe, reciprocal; what does that mean? 5 A It means he's able to walk on his two feet. 6 Q Without any apparent difficulty corrects? 7 A Yes. 8 Q And, again, continues to show a very good result from 9 the surgery that you performed? 10 A In terms of being neurologically stable, yes. 11 Q Are and then six months later is the next time you see 12 him, January 11, 2013, you wrote down, that Mr. Vidals reports 13 to you that his overall complaints of pain have been somewhat 14 ameliorated and relieved with surgical intervention. 15 Correct? 16 A Yes. 17 Q And you wrote down, he no longer experiences 18 progressive weakness into the upper extremities arms or hands? 19 A Yes. 20 Q Again, you did a good job? 21 A Yes. 22 Q And I know you said that you saw him again in October. 23 I don't have that report. 24 So the last time. 25 I now have that report. Dr. Merola - Cross 580 1 (Handing). 2 Q The last time you saw him, he told you the surgery 3 continues to be successful in preventing neurological 4 deterioration and has been successful in preventing pain in his 5 upper extremity arms and hands as well as in his lower 6 extremities hands and feet. 7 Correct? 8 A Yes. 9 Q So, just to summarize all of your follow-up visits, in 10 the hour that you spent with him, all of your, the findings I 11 just read are indicative that the surgery you performed was a 12 success? 13 A Yes. 14 Q And he had no follow-up complications? 15 A Correct. 16 Q And the pain that he had beforehand he told you had 17 subsided? 18 A Had gotten better. 19 Q And he told you and your own observations is that he's 20 able to walk and he's able to, was he dressed appropriately? 21 A Yes. 22 Q Was he coherent? 23 A Yes. 24 Q Did he at peer you spoke to him in Spanish correct? 25 A Yes. Dr. Merola - Cross 581 1 Q When you spoke to him in Spanish, did he appear, did 2 he understand what you were saying? 3 A Yes. 4 Q Is he conversant? 5 A Yes. 6 Q Is he someone who seems to be an uneducated 7 unintelligent person with no future. 8 MR. ROSENBERG: Objection. 9 THE COURT: Beyond the scope of 10 cross-examination. 11 Q Did you find him to be of appropriate intelligence to 12 understand the things that you were saying to him? 13 MR. ROSENBERG: Same objection. 14 THE COURT: Overruled on that. 15 You can answer. 16 A Did he understand what we were talking about, yes. 17 Q Did you find him in your opinion to be in the bottom 18 fifth percent of intellect of everyone in the country or did 19 you have to slow down and repeat things to him over and over 20 again? 21 MR. ROSENBERG: Objection. 22 THE COURT: Sustained. 23 Q I want you to assume that subsequent to your surgery, 24 Mr. Vidals continued to report to you, improvement in his 25 condition and that you, I trust you will agree with me, you Dr. Merola - Cross 582 1 were pleased with the work that you did and he has had the 2 desired result from the surgery. I want you to assume that, do 3 you have any plan to see him in the future? 4 A Yes. 5 Q When is his next appointment? 6 A I last saw him in October. So we probably would be 7 seeing him in either the spring or summer of next year. 8 Q So the next time you will see him is perhaps June, 9 July? 10 A Yeah. 11 Q I want you to assume that during the six or 7 visits 12 that you saw him as I indicated, everything from a neurological 13 standpoint seemed to be improving intact things like that. 14 I want you to assume that he is able to walk, 15 sit, stand for extended period of time. 16 And I mentioned that, and you agreed with me, 17 that if he did do those things it would be good for him 18 physically and emotionally? 19 MR. ROSENBERG: Objection. 20 THE COURT: Can we get to the question counsel. 21 Q Okay. 22 Would you also agree with me that from an 23 emotional standpoint, if he were to return to work, that would 24 help him emotionally, correct? 25 MR. ROSENBERG: Objection. Dr. Merola - Redirect 583 1 THE COURT: Overruled. 2 Q Yes or no? 3 A I can't answer it just yes or no. 4 Q Well if someone says that they're depressed because 5 they just sit at home all day, do you as a medical doctor, do 6 you have an opinion with a reasonable degree of medical 7 certainty, that if that person were to return to work, that 8 would be helpful to them similar to going outside, walking 9 around, things like that it would help them emotionally? 10 MR. ROSENBERG: Objection. 11 THE COURT: Sustained. Counsel could we have a 12 side bar. 13 (Discussion at the side bar out of the hearing 14 of the jury). 15 Q As professional courtesy because counsel has extended 16 to me I'll extend the professional courtesy. I am going to 17 stop my questioning so we can finish you now and you don't have 18 to come back after lunch. 19 A Thank you. 20 Q Not to mention, I'm sure the jury will appreciate that 21 as well. 22 THE COURT: Mr. Rosenberg. 23 REDIRECT EXAMINATION 24 BY MR. ROSENBERG: 25 Q Dr. Merola, when you went in to do the surgery can Dr. Merola - Redirect 584 1 you tell the jury did you see any evidence of degeneration? 2 A No. 3 Q Can you explain to them, is that consistent with other 4 findings, diagnostically that you found? 5 A Yes. 6 Q Can you explain to them that? 7 A Sure. 8 Extruded disc material in the spinal canal 9 compressing the cord and the nerve roots, torn anulus that is 10 the outside covering of the disc; without any significant 11 evidence of bone collapse or bone on bone rubbing or any joint 12 problems or issues. 13 So, that pretty much means there were no 14 significant degenerative findings appreciated there. 15 Q Doctor, did you review the defendants radiology 16 report? 17 A Yes. 18 Q Was that consistent with your findings? 19 MR. KAMINSKY: Objection, your Honor. 20 THE COURT: I am going to sustain it. 21 It's not in evidence. 22 MR. ROSENBERG: No it's not. 23 THE COURT: Sustained. 24 Q Doctor, the EMG testing, that Dr. Damn cam asked you 25 about can you explain to the jury what significance if any that Dr. Merola - Redirect 585 1 had? 2 A So an EMG, an EMG, an EMG is the test where you are 3 looking at the way the nerves affect your muscles. Your muscle 4 it's specifically are innervated by multiple areas of nerve. 5 When a nerve, a nerve that exits your neck and 6 goes down into your arms and hands has a certain distance it 7 has to travel. 8 That nerve even if that nerve is cut off from 9 where it exits your neck can still function to a certain extent 10 in your arm. Depends upon the amount of time involved after 11 that nerve is damaged. 12 The most significant finding on that EMG is the 13 problem with the paracervical muscles. The paracervical 14 muscles are directly innervated from the nerves as they 15 innervate your neck. 16 There's the first in manifest damage on an EMG. 17 That EMG demonstrated that paracervical muscle damage. 18 Q Consistent with your other findings? 19 A Yes. 20 Q Doctor, can you explain to the jury about the fees for 21 the surgery? 22 A So the fee, you know, health care is a big issue, 23 right, now because we're talking about. 24 MR. KAMINSKY: Judge -- 25 A I'm sorry. Dr. Merola - Redirect 586 1 THE COURT: Let's focus. 2 A Those fees are mandated by the payer. 3 So, the way that fee is calculated and and 4 reimbursed depends on whoever is paying that fee. 5 Q Meaning that it various depending on who is paying? 6 A Correct. 7 Q Doctor, almost last, almost last, the construction 8 work and other physical work that Mr. Vidals did, did that lead 9 to any degeneration or any problems that preexisted this 10 accident, with a reasonable degree of medical certainty? 11 A No. 12 Q Explain to them how you know that? 13 A So, first of all, there weren't any degenerative 14 changes. There was no bone-on-bone, no facet joint arthritis, 15 number one. 16 Number two degenerative changes which are common 17 to all of us, if they become what is known as symptomatic or 18 they cause symptoms and/or problems, there is treatment for 19 those symptoms and/or problems and then you have a limitation 20 in your ability to function if those degenerative changes are 21 causing the problem. 22 So there's nothing to indicate that that was the 23 case for this. 24 Q And last, issue, on nursing care, the last line that 25 Mr. Kaminsky read to you could you explain that to the jury? Dr. Merola - Recross 587 1 A Sure. 2 So I think the important thing is that Mr. Vidals 3 has a family that is able to care for him at home and 4 therefore, when I wrote what I wrote it's taking into account 5 the fact that he does have a family that cares for him so that 6 he would not require a full-time nursing care facility. 7 MR. ROSENBERG: I'm done. 8 MR. KAMINSKY: One last question. 9 RECROSS-EXAMINATION 10 BY MR. KAMINSKY: 11 Q You mention fees depending upon who the payee is, who 12 who the payor is? 13 A Yes. 14 Q Doctor, isn't it true that under the affordable health 15 care act that covers preexisting conditions and if Mr. Vidals 16 buys a policy he doesn't have to pay for any of this stuff? 17 MR. ROSENBERG: Objection. 18 THE COURT: Sustained. 19 Doctor, you can step down. 20 (Witness withdrew.) 21 THE COURT: Members of the jury, I'm going to 22 release you for today. 23 Ask you to come back at Monday at 9:30. 24 Excuse me at this point. 25 Mr. Rosenberg, plaintiff. Dr. Merola - Recross 588 1 MR. ROSENBERG: I have one other, I want to show 2 the jury the videotape. 3 I'll do that on Monday. 4 THE COURT: We'll take that up on Monday, then. 5 See you Monday at 9:30. 6 Ask you not to discuss the case amongst 7 yourselves because you haven't heard all the evidence yet. 8 (Jury excused until Monday, December 9, 2013 at 9 9:30 a.m.) 10 THE COURT: All right, gentlemen. I'll see you 11 on Monday at 9:30. 12 How long is the video? 13 MR. ROSENBERG: Five minutes or less. 14 THE COURT: Is there a problem about 15 authentication? 16 MR. KAMINSKY: If he wants to play it, I don't 17 have to call the guy who took it. 18 THE COURT: When we come in on Monday you'll 19 consent to it being in evidence. 20 You have something to play it on? 21 MR. ROSENBERG: My laptop. 22 (Whereupon, the trial stood in recess until 23 Monday, December 9, 2013 at 9:30 a.m.) 24 * * * 25 It is hereby certified that the foregoing is a true and accurate transcript of the proceedings. ELLEN DOHERTY NERI 589 I N D E X Page Line DR. ANDREW MEROLA 470 17 DIRECT EXAMINATION 471 3 BY MR. ROSENBERG Items on posterboard 497 14 so marked in evidence subject to redaction as Plaintiff's Exhibit Number 23 and 24 CROSS-EXAMINATION 542 23 BY MR. KAMINSKY REDIRECT EXAMINATION 583 23 BY MR. ROSENBERG RECROSS-EXAMINATION BY MR. KAMINSKY 587 9