1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: TRIAL TERM PART: 91 2 - - - - - - - - - - - - - - - - - -X MICHAEL GAMBALE, 3 Plaintiff, 4 - against - Index No. 5 18694/09 400 FIFTH, and PAVARINI McGOVERN, LLC., 6 Defendants. 7 - - - - - - - - - - - - - - - - - - -X 8 141 Livingston Street 9 Brooklyn, New York 11201 10 January 29, 2014 11 B E F O R E: HONORABLE DEVIN P. COHEN, A.J.S.C. 12 A P P E A R A N C E S 13 SACKS AND SACKS LLP 14 Attorneys for the Plaintiff 150 Broadway 15 New York, New York BY: JAMES J. McCRORIE, ESQ. 16 Of Counsel 17 LEWIS, BRISBOIS, BIGGAARD & SMITH, ESQS. 18 Attorneys for Defendants 77 Water Street 19 New York, New York BY: ALAN KAMINSKY, ESQ. 20 Of Counsel 21 22 23 24 LISA MINELLI 25 OFFICIAL COURT REPORTER Proceedings 2 1 THE COURT: Bring out the jury. 2 (Whereupon, the jury entered the 3 courtroom.) 4 THE COURT OFFICER: All rise. Jury entering. 5 THE COURT: Good morning. I want to give 6 everyone the same fair warning I did yesterday, we did 7 leave the vents covered all night, but that's not a 8 guarantee that it won't get warm in here. If you're 9 wearing extra layers you wish you weren't wearing, now 10 is probably the time to try to get rid of them. It is 11 10:22. We left off yesterday at the close of the 12 Plaintiff's direct examination, but as I mentioned to 13 you, we do sometimes go out of order in order to 14 accomodate the schedule of witnesses. 15 My understanding is that that's our plan this 16 morning; is that correct? 17 MR. McCRORIE: Yes, your Honor. With your 18 Honor's permission, Plaintiff will be calling Dr. 19 Mandelbaum. 20 THE COURT: Please call Dr. Mandelbaum. 21 THE COURT OFFICER: Remain standing. Raise 22 your right-hand. 23 DR. C H A I M M A N D E L B A U M, having been first 24 duly sworn on behalf of the Plaintiff, was examined and 25 testified as follows: Plaintiff - Mandelbaum - Direct 3 1 THE COURT OFFICER: State your name and 2 address for the record. 3 THE WITNESS: Dr. Chiam Mandelbaum, 10 Union 4 Square, suite 4K, New York, New York 10003. 5 THE COURT: Good morning Dr. Mandelbaum is 6 that M.D. or D.O.? 7 THE WITNESS: M.D.. 8 THE COURT: It's your witness. 9 MR. McCRORIE: Thank you, your Honor. 10 DIRECT EXAMINATION 11 BY MR. McCRORIE: 12 Q. Good morning Dr. Mandelbaum. The jury will 13 find out in very short order that this is your first 14 time ever in a court testifying. I'm going to ask you 15 to speak up, because I couldn't even hear you say good 16 morning. 17 Speak louder than you think you need to speak 18 to me and direct all your responses to the jury, 19 please? 20 A. Yes. 21 Q. We just said it, but are you licensed to 22 practice medicine? 23 A. Yes, I'm licensed to practice medicine in the 24 State of New York. 25 Q. As a medical doctor as opposed to a DO? Plaintiff - Mandelbaum - Direct 4 1 A. Correct. 2 Q. Tell the jury for how long you've been 3 licensed to practice medicine? 4 A. I graduated State University Hillside Center 5 in Brooklyn, which is Downstate, in 1992. I got my 6 medical license in the year after 1993. 7 Q. Again, keeping your voice up, you can do this 8 as succinctly as you can, but don't leave anything 9 out. 10 You're the first doctor testifying, please 11 tell the jury your educational background, and your 12 professional background leading up to where you are. 13 So, for instance, so we don't have to keep asking 14 questions, medical school, internship, residency, 15 other training fellowships and since you're the first 16 doctor, identify any words like residency, and tell 17 the jury what that means, please? 18 A. Again, I attended State University Downstate 19 Brooklyn, which is near Kings County Hospital 20 graduating in 1992. 21 My first year after I did an internship which 22 is a preliminary year you do internal medicine for a 23 year at Staten Island University Hospital that was 24 prior, before I started my anesthesiology residency 25 which is a three-year program at Mount Sinai in Plaintiff - Mandelbaum - Direct 5 1 Manhattan. 2 After the three years I did a fellowship in 3 pain management, which is a one year fellowship. 4 Following that, I first got my first job actually in 5 New Jersey in Elizabeth New Jersey, working as an 6 attending in anesthesiology, also starting up their 7 pain management practice over there. 8 I was there for about four and a half years, 9 then I teemed up with my partner, who's in New Jersey, 10 who's in New York, Dr. Gary Thomas, and subsequently 11 we were part of Cabrini Hospital, which ended up 12 closing, moved to Beth Israel Medical Center where I'm 13 an attending now. We also have an affiliation with 14 New York Methodist Hospital, which is in Brooklyn Park 15 Slope. 16 Q. Tell the jury what attending means? 17 A. An attending is basically a supervisory role 18 as a physician for the hospital. We do have a 19 private practice, this is a private practice, pain 20 management group. The supervisory role occasionally 21 includes training of some interns and residents, but 22 there is actually a separate department that actually 23 does that. Occasionally we do have some interns and 24 residents that come into our office and observe what 25 we do as doing pain management. Plaintiff - Mandelbaum - Direct 6 1 Q. And are you part of a practice, and does it 2 have a name? 3 A. Yes. I am part of a two physician practice 4 called Comprehensive Pain Management. 5 Q. And anesthesia services PC? 6 A. And anesthesia services. 7 Q. The offices you have, can you tell -- is one 8 of the offices actually inside the Phillips Ambulatory 9 Care Center at Beth Israel? 10 A. Yes. The one office is on the fourth floor of 11 the Phillips Ambulatory Care Center, which is in Union 12 Square, affiliated with Beth Israel, now part of Mount 13 Sinai, which actually took over Beth Israel. 14 Our other office is near Methodist, in Park 15 Slope, Brooklyn. 16 Q. The address? 17 A. 408, 7th Avenue, corner of 13th Street Park 18 Slope. 19 Q. Are you board certified in any areas of 20 medicine? 21 A. Yes. I'm board certified in anesthesiology, 22 and I have also board certification in pain medicine. 23 Q. Can you please tell the jury the significance 24 of those board certifications, what does that entail? 25 A. It entails meeting certain criteria that the Plaintiff - Mandelbaum - Direct 7 1 medical board has put in front of us to meet those 2 certain criteria in a test format, including also 3 residency and fellowship. 4 Board certification in anesthesia is grueling. 5 There is a written and oral exam. Pain medicine is a 6 written exam, but again you must qualify doing that 7 fellowship before you can take the boards. 8 Q. Does the practice you have in Beth Israel and 9 in Brooklyn here, does that practice deal with trauma 10 patients? 11 A. Yes. 12 Q. Does it deal with non trauma patients from the 13 hospital and referrals from all over? 14 A. Yes. 15 Q. Does your practice accept work related 16 accidents, and in any of the rules and procedures that 17 were in connection with those types of accidents? 18 A. Yes, we do see a lot of work related 19 accidents. 20 Q. Have you ever testified in court ever on 21 behalf of a patient? 22 A. No. 23 Q. Prior to my involvement, Mr. Sacks involvement 24 in meeting you, have you ever met either of us before? 25 A. No. Plaintiff - Mandelbaum - Direct 8 1 Q. Or anyone from Sacks and Sacks the law firm? 2 A. No. 3 Q. Is as the jury will learn all experts who stop 4 there practice, and testify are paid, are you being 5 paid for your time away from your practice? 6 A. Yes. We have to -- I had to cancel, I didn't 7 know about the court until two days ago, and I was out 8 of the country. This was something on the spur of the 9 moment I did have to cancel the office visits for 10 today. We do see fifty sixty patients on a given day 11 so that I can be here. 12 Q. At what rate are you being compensated to 13 testify to cancel the sixty patients, and be here for 14 possibly the day? 15 A. For the day there is a fee of $5,000. 16 Q. Okay. Did we -- it's your first time 17 testifying, but in any event we do it anyway. Did we 18 meet prior to your testimony at least once? 19 A. Yes. 20 Q. When we met, did we go over the rules of 21 court? 22 A. Yes. 23 Q. Were you paid for that meet when we met? 24 A. Yes. 25 Q. At what rate were you paid for that? Plaintiff - Mandelbaum - Direct 9 1 A. At a rate of $350.00 an hour. 2 Q. Was that about an hour? 3 A. About an hour. 4 Q. I want to speak to you for the record, doctor 5 if you can just excuse me, I just want to do this. 6 Your records have been stipulated into 7 evidence as Plaintiff's 26. I know you have your file 8 here too, but if you need to refer to anything in your 9 record, it's there for you to read from, because it is 10 now in evidence. 11 A. Okay. 12 Q. Prior to coming here in the last two days 13 knowing that this would be the day that you were 14 testifying, were you asked to review your entire chart 15 so we can maybe make it go a little quicker? 16 A. Yes. 17 Q. Did you in fact review your chart of your 18 medical treatment of Mr. Gambale? 19 A. Yes, I did. 20 Q. Is Mr. Gambale a patient of yours? 21 A. Yes. 22 Q. How did Mr. Gambale come to be a patient of 23 yours? 24 A. He was referred by a surgeon, orthopedic 25 surgeon, Dr. Marola, who is an attending at Methodist Plaintiff - Mandelbaum - Direct 10 1 Hospital. 2 Q. Did you previously testify, are you an 3 attending at Methodist Hospital as well? 4 A. Yes. 5 Q. You told me before what attending means, that 6 means you have privileges? 7 A. You have privileges in the hospital to do what 8 your specialty is. 9 Q. Okay. If you need to refer to your notes of 10 the first visit, but you reviewed your notes? 11 A. Yes. 12 Q. Of the hospital. Those notes are in evidence? 13 A. Yes. 14 Q. Just because it may get confusing, I want to 15 clarify one thing. For a period of time all of your 16 notes are handwritten, and then a year or so in they 17 become all typewritten. Did your office change the 18 way they keep their records during the course of the 19 treatment of Mr. Gambale? 20 A. Yes, we have changed to electronic medical 21 record system, which was a huge ordeal for our 22 practice, but going for handwritten to electronic, 23 electronic billing, the training involved in giving 24 the staff it's actually a huge undertaking. 25 Q. Up until the time you switched over, Plaintiff - Mandelbaum - Direct 11 1 everything would be handwritten? 2 A. Handwritten. 3 Q. Okay. Let's just take the -- is that common 4 in any event for another physician to refer you 5 patients? 6 A. Yes. 7 Q. What was the first date you saw Mr. Gambale? 8 A. He first came to our office September 3, 2010. 9 Q. Did you meet with Mr. Gambale, and do what's 10 take what's called a history? 11 A. Yes. 12 Q. Before you tell the jury what the history is, 13 first doctor, we need you to define medically what 14 does history mean? 15 A. History is sitting down with the patient and 16 getting information about what his complaints are, 17 about what you will see is his neck, back, and finding 18 out again he was an injury type patient worker's comp. 19 patient, finding out about the mechanism of injury. 20 Also reviewing other document that may have been sent 21 to our office at that time. 22 Q. Just so we can get some of these definitions 23 out of the way, only the first doctor needs to do it, 24 can you tell the jury what diagnosis and prognosis 25 means? Plaintiff - Mandelbaum - Direct 12 1 A. Okay. After seeing the patient, we get a 2 history. We do a physical exam. We are establishing 3 a diagnosis based on the information that we have. At 4 that point we have a treatment -- we set up a 5 treatment plan that's going to be -- 6 Q. The word diagnosis, and what does prognosis 7 mean? 8 A. Diagnosis is what his condition is. 9 Q. Prognosis? 10 A. Prognosis is what, how he is going to turn out 11 what is the long term effects of that condition is his 12 prognosis. 13 Q. In medical terms, is diagnosis synonymous with 14 impression or assessment? 15 A. Yes. 16 Q. Okay. What was the history that you were 17 given as to the why Mr. Gambale was in your office? 18 A. Mr. Gambale told us that in July of I believe 19 it was July 17, 2009, he was involved in a work 20 related accident. 21 Q. Did he tell you what type of work he was doing 22 per your notes? I don't want to read from them? 23 A. He was an iron worker. 24 Q. What did he tell you about how the accident 25 happened? Plaintiff - Mandelbaum - Direct 13 1 A. He was on a construction site. He was moving 2 a wall of some sort which is very heavy with another 3 individual. He stated that the floor collapsed 4 underneath him, then he fell about one story is 5 what -- one full story from that collapsed floor. 6 Q. And what did he tell you about injuries? 7 A. He sustained injuries both to his neck, his 8 back. He he also was complaining of severe headache 9 at that time. 10 Q. Okay. Using your handwritten notes can you -- 11 did he also tell you anything about anxiety, panic 12 attacks? 13 A. Yes, since the accident his history is more 14 complicated than that. He was seen by multiple 15 physicians. He actually underwent surgery I guess in 16 regard to his accident and subsequent surgery an 17 continued pain. He had difficulty sleeping and 18 anxiety attacks. 19 Q. All of that is in your notes? 20 A. Yes. 21 Q. Did you do a physical examination, I'm not 22 going to do this on every exam, but the first one, did 23 you do a physical examination of Mr. Gambale? 24 A. Yes. 25 Q. You stated that you knew he had a surgery Plaintiff - Mandelbaum - Direct 14 1 that's in your record as well? 2 A. Yes. 3 Q. What did your physical examination entail, can 4 you tell the jury what that was, and also define what 5 clinical assessment means? 6 A. Okay. So, on physical examination again his 7 major complaint was of neck pain. He did have a lot 8 of spasm in his neck, the cervical paraspinal muscles. 9 Q. Define every word. I don't mean to stop you. 10 Every word that you say that you believe a lay person 11 wouldn't know. Spasm? 12 A. Spasm is tightening of the muscles in his 13 neck. Most people don't have tightening of the 14 muscles. He had extreme tightening. These are the 15 cervical paraspinal muscles, which run up and down the 16 spine in the neck area. His extended further down. 17 He did have tenderness over his shoulder areas on both 18 sides. He had limited range of motion, which is again 19 it's something that we test for. As far as movement, 20 extension, flexion of his neck, as well as he had 21 tenderness over -- he was complaining of headaches 22 from his back. He had tenderness over the back of his 23 neck. There is a nerve back here called the occipital 24 nerve that caused pain actually even when you palpated 25 it. That extended over the top of his head. Plaintiff - Mandelbaum - Direct 15 1 Q. Let me stop you for one second. Please try to 2 continue where you're at. You used word like 3 extension, flexion, you went forward and backwards 4 with your neck, and you said palpated. Tell the jury 5 what they mean? 6 A. Extension, flexion is again with movement of 7 the neck. You're actually getting him to move his 8 neck again forward, backwards, lateral rotation, side 9 to side as well as -- 10 Q. Palpation? 11 A. Feeling his neck for spasm. Feeling all the 12 muscles in his neck, shoulder upper back and lower 13 back in his case. 14 Q. So the jury is clear, you said he had spasm. 15 Did you see that? Did you feel that? How do you know 16 he had spasm on into first visit in September of 2010? 17 A. It's done by palpation, which is feeling the 18 muscles and tightening, and his reaction to tightened 19 muscles. 20 Q. Where did they have spasms, specifically? 21 A. He had spasms all along his cervical 22 paraspinal muscles, which are these muscles that go 23 alongside where you feel your spine. You can feel the 24 bone on the outside. You can feel it going all the 25 way down all those muscles alongside. Plaintiff - Mandelbaum - Direct 16 1 Q. Indicating touching the head? 2 A. All those muscles alongside are tight, and 3 limiting his range of motion. 4 Q. Your note is in front of you. Can you tell us 5 a little bit further about after he told you he fell a 6 story injuring his neck and back, did he tell you who 7 he went to see, any medical professionals? 8 A. He did see initially he saw his regular 9 medical doctor right after the incident. 10 Q. Is that what PMD means? 11 A. Yes, private medical doctor. 12 Q. Primary medical doctor? 13 A. Primary. 14 Q. What does that say after primary medical 15 doctor? 16 A. Who saw him and evaluated him. Obviously he 17 had a huge fall. Primary doctor sent him to the 18 emergency room to be evaluated. 19 Q. Okay. Next to the word x-rays it says a 0 20 with a line, and FX. What does that mean? 21 A. Refers to x-rays that were done in the 22 emergency room talking about that there were no 23 fractures. 24 Usually when a patient comes to the emergency 25 room they want to make sure that there's nothing Plaintiff - Mandelbaum - Direct 17 1 fractured or broken. Most of these ER's want to get 2 patients in and out. If there is something fractured 3 and unstable they'll keep them in there, otherwise 4 they tend to treat and send them home -- 5 MR. KAMINSKY: Judge, I move to strike that 6 testimony. 7 THE COURT: On what basis? 8 MR. KAMINSKY: On what most emergency rooms 9 tend to do -- 10 THE COURT: Fair enough. 11 THE WITNESS: The emergency rooms that I 12 have -- - 13 MR. KAMINSKY: Withdrawn. Go ahead. 14 A. The emergency rooms that I worked at, the 15 primary goal is acute treatment of acute pain. Again 16 you're ruling out anything that's life threatening and 17 condition that's life threatening, or something that 18 has to be addressed right then and there, stabilizing 19 the patient, subsequently sending them home to 20 follow-up as an outpatient. 21 Q. So we can be clear too, I know you brought 22 your records here, but prior to your -- during your 23 treatment of Mr. Gambale, did you have an occasion to 24 be sent, and see from Dr. Marola, or any entity, MRI's 25 that he's taken over the years, medical records from Plaintiff - Mandelbaum - Direct 18 1 other doctors, surgical reports, whether it was his 2 arm, or his neck, have you seen those? 3 A. Yes. 4 Q. Have you reviewed all of the medical records 5 prior to your testimony here today in connection with 6 any opinions you're going to give the jury? 7 A. Yes. 8 Q. Have you actually seen -- we're going to have 9 another doctor do it to save time, but have you 10 actually seen, and interpreted the MRI films both of 11 the neck and the back? 12 A. Yes. 13 Q. In connection with you, the post accident -- - 14 A. Yes. 15 Q. I don't know because I was stopping you. 16 Understanding it's your first time, you were going 17 through the exam, and I stopped you at palpating with 18 flexion and extension. You could continue telling us 19 what, if any other exam you did to Mr. Gambale on the 20 first visit before, were you going to come up with a 21 treatment plan, and defining any words you think the 22 jury may need? 23 A. Well, he had also a neurological exam, which 24 included ascertaining, or finding out whether he has 25 unusual logical deficits. In other words, does he Plaintiff - Mandelbaum - Direct 19 1 have weakness in his hand which he actually did so. 2 He did have weakness in his right hand, right upper 3 extremity. He also -- 4 Q. Can you tell the jury the difference between 5 neurology, orthopedist and pain management, and how 6 they interact with each other? 7 A. Okay. Orthopedics primarily deals with issues 8 pertaining to the bone. You have orthopedics, 9 orthopedic physicians that deal with like knees, 10 shoulder injuries, and you have orthopedics that 11 specialize in spine, which in his case he had seen Dr. 12 Marola who is an orthopedist specializes in spine. 13 Neurologist deals primarily with the nerves 14 and nerve syndromes. Sometimes the nerve can be 15 effected from the spine. In this case it's sometimes 16 it can be effected or a peripheral nerve -- in other 17 words a nerve that's not coming from the spine, but 18 just in the legs, small nerve endings. A neurologist 19 primarily deals with this. As far as pain management, 20 we are a secondary referral. We get referred a lot 21 from neurologist and from the orthopedist. Our 22 challenge is one, to find kind of mix the two 23 together, improve function in the patient, treat the 24 patient, come up with a treatment plan. We follow up 25 with a patient a lot more, because usually they're on Plaintiff - Mandelbaum - Direct 20 1 some pain medication, so we see them much more 2 frequently than a neurologist or orthopedist see them. 3 Q. Just because you used the word neurologist, 4 did you have occasion during your treatments prior to 5 testifying to review the records of Complete Medical 6 Care, and the neurologist from that practice Arak 7 Hausknecht? 8 A. Yes. 9 Q. Did you have occasion to review what's known 10 as EMG reports both from October 2009, and later on in 11 the treatment? 12 A. Yes. 13 Q. Tell the jury what an EMG report is? 14 A. An EMG is -- 15 Q. Or the tests? 16 A. A test of the nerves to see if there is nerve 17 damage. So we can do an EMG of the upper extremity or 18 lower extremity, and you want to see if there is 19 something that's causing the nerve damage. It doesn't 20 tell you what's causing the nerve damage that is the 21 next step that's what we evaluate, but it tells you if 22 there is some type of nerve damage. 23 Q. Sometimes it actually takes surgery to see 24 what's causing the nerve damage; is that correct? 25 A. Yes. Plaintiff - Mandelbaum - Direct 21 1 Q. So, it's in evidence, but in October 1, 2009, 2 the jury may see the report that says there's evidence 3 of C5, C6 radiculopathy. Can you tell them what that 4 means, those words put together? 5 A. Okay, the cervical spine that's the neck, all 6 those there are nerves that come out from the neck 7 area. 8 Q. If you want this, is and I think deemed for 9 use, this is a model if you want to use it with the 10 jury at any time. 11 A. There happen to be eight nerves that come out 12 from the neck area, and you have bones which the 13 vertebral bodies one sits on top of the other one in 14 between. There is a disc, the nerves come out where 15 the disc is. If the nerve is effected again, these 16 are nerves that are labeled C5, C6, C7, C8. If one of 17 those nerves is effected, it's going to cause pain 18 that the patient is going to feel. 19 Q. I'm just going to point to something, doctor. 20 You seen this before in our preparation, the anatomy 21 of the spine? 22 A. Yes. 23 Q. Is this an accurate illustration of the 24 anatomy of the spine? 25 A. Yes. Plaintiff - Mandelbaum - Direct 22 1 Q. The nerves I'm talking about, if there is the 2 spinal cord, and this is the disc, the nerves, the 3 exiting nerve roots, is that what you're talking 4 about? 5 A. Yes. 6 Q. What what does the word radiculopathy mean in 7 an EMG report, or anywhere? 8 A. It refers to those nerves specifically from 9 the neck area that are causing pain. There is some 10 irritation that's happening on the nerve. 11 Q. And -- 12 A. It's causing pain shooting down because again 13 these nerves of the neck area go into the arm, the 14 hand so depending on which nerve C5, C6, C7 will go 15 into different fingers, different parts of the hand. 16 Q. I'm just going to hold up another model over 17 here in that same report from October 1, 2009, if it 18 continues with the findings that there is bilateral 19 median sensory motor neuropathy, and right ulnar 20 sensory motor neuropathy with slowing across the 21 elbow, what does that mean? 22 A. It means all these nerves in the neck area, 23 they're individual nerves. They tend to combine and 24 form other nerves in groups, so there is one nerve 25 called the ulnar nerve, and one nerve called the Plaintiff - Mandelbaum - Direct 23 1 median nerve. The ulna that is a group of little 2 nerves that come out of the neck. 3 Q. The model is being handed to the doctor? 4 A. So, the ulnar nerve comes out actually this 5 muscle, the ulnar comes out and again those little 6 nerves that come from the neck combine, they form the 7 ulnar nerve, which is out here, and usually the ulnar 8 nerve, if you touch your ulnar nerve, you hit the 9 funny bone and feel tingling down, down into your 10 little finger. The median nerve is this other nerve 11 that joins together. That goes into the wrists in the 12 forefront, palm, or front of the wrists here, and goes 13 into the fingers and can cause pain. 14 Q. After you did your initial physical 15 examination, took the history from Mr. Gambale, did 16 you have your initial assessment. 17 A. Yes. On -- 18 Q. Initial diagnosis, I know your words says 19 assessment, but diagnosis? 20 A. Yes. 21 Q. What was that? 22 A. Mr. Gambale is a patient who had cervical 23 fusion. He had already had surgery on his neck. He 24 still had continued pain. Our impression was of post 25 cervical fusion. He also had a lot of extreme spasm Plaintiff - Mandelbaum - Direct 24 1 of his neck, which I referred to the term that we use 2 was cervical torticollis, cervical torticollis refers 3 to more extreme spasm, wasn't just spasm like light 4 muscle spasm. 5 Q. Can you spell torticollis? 6 A. T-o-r-t-i-c-o-l-l-i-s. 7 Q. The reason I ask that is spasm different than 8 this is torticollis, a rare finding? 9 A. Torticollis is a rare finding. 10 Q. Before the words cervical torticollis, you 11 actually have this other three letters, what do they 12 mean? 13 A. Greater occipital neuralgia GON is the 14 occipital nerve come out from the base of the neck 15 area. If that nerve is damaged, or tampered with, or 16 something irritating it, it can cause severe 17 headaches, which he was exhibiting. 18 So, those headaches tend to be from the back 19 of the neck, going either to the top of the head, or 20 to the eye. He was complaining of -- he had 21 tenderness over that occipital nerve, which is the 22 base of the neck. 23 Q. And so cervical torticollis, let's get 24 specifically what is torticollis as he opposed to 25 whether someone would say mild or moderate spasm, a Plaintiff - Mandelbaum - Direct 25 1 doctor would say? 2 A. Torticollis is more of an extreme spasm, a lot 3 of tightening in the neck muscles. Usually there is 4 lack of movement which he had. Usually there is a 5 little bit of a head tilt which he had, and very, very 6 tender on palpation, which is touching, or feeling 7 those muscles. 8 Q. And it's also noted you have in your in his 9 complaints was he also complaining of lower back pain 10 to any thoracic pain? 11 A. Yes. 12 Q. What does thoracic mean? 13 A. Thoracic refers to you have the neck, which is 14 the cervical spine. Below that is the thoracic. The 15 chest area, so those thoracic muscles were also tight. 16 All the muscles from his neck, thoracic, and including 17 his lumbar spine were tight, and on palpation and 18 effecting his ability to function. 19 Q. If you have knowledge as to whether or not 20 when he saw you he was already on pain medication? 21 A. I believe he was on something, pain medication 22 he was taking some, I believe, some antiinflammatories 23 and Percocet at that point. 24 Q. Did you prescribe, did you have a plan for 25 continuing medication, or giving him medication? Plaintiff - Mandelbaum - Direct 26 1 A. Yes. Our plan at that point was one to start 2 him, put him on some pain medication so he can 3 function. He was given a small amount of Percocet, 4 which is a narcotic medication. So there are 5 potential side effects. He was aware of those side 6 effects. He was also given a medication called 7 Neurontin, otherwise known as Gabapentin which is a 8 medication that helps nerves calm down. It's an anti 9 seizures medication. It gets the nerves to calm down 10 so they don't feel the sharp pain. Also his headaches 11 also from his neck was from the occipital nerve. It 12 will calm those nerves down and help with pain. 13 Q. You've already told us you accepted work 14 accidents, did you request authorization to do any 15 future treatments of Mr. Gambale on that first visit 16 after you did a full assessment of him? 17 A. Yes, our plan at that point was to request 18 authorization. This is a worker's -- 19 Q. For work related accidents. Tell us what you 20 requested. You don't have to tell us of who? 21 A. It was for a cervical epidural steroid 22 injection. 23 Q. I'm going to have you explain that in a little 24 while. What else did you request per your note? What 25 is Botox? Plaintiff - Mandelbaum - Direct 27 1 A. We did request Botox, I don't believe that 2 first visit, but the subsequent visits. 3 Q. Looking down at 9-3-10, Botox? 4 A. You're right it was there. We did request 5 Botox. The whole idea behind Botox is to help with 6 spasm of the neck. 7 Q. Can you tell the jury what a trigger point 8 injection is? 9 A. Okay. Trigger point injections are all those 10 muscles that are tight in the neck area. You can 11 actually take a needle and inject into those muscles a 12 muscle relaxant, which is also a numbing medication 13 that helps the muscles relax. So, you can take that 14 needle, put it into those real tight areas which are 15 called trigger points, which are for tight muscles, 16 and get those muscles to relax. 17 Q. Which is more expensive, a trigger point or 18 Botox injection? 19 A. Botox injection is much more expensive. 20 Q. When you didn't get -- did you get 21 authorization to do Botox? 22 A. No. 23 Q. Have you repeatedly from the first time you 24 saw Mr. Gambale have you repeatedly tried to get 25 authorization for Botox? Plaintiff - Mandelbaum - Direct 28 1 A. Yes. 2 Q. What is more, in your opinion, effective in 3 treating torticollis, not the regular spasm, Botox or 4 trigger point. What would be more beneficial? 5 A. Botox would be much more beneficial. 6 Q. How much more expensive is it, three times 7 more, four times more, if you know? 8 A. The cost of the just the Botox medication 9 alone is close to a thousand dollars just for the 10 vial, while the cost of the medication for trigger 11 points is in the range of $50 for the vial. 12 Q. Can you tell the jury how many trigger point 13 injections you've been authorized to give Mr. Gambale 14 from the time you first started treating him until 15 today you can say an estimate? 16 A. He's been followed up routinely on at least a 17 monthly basis over the past three years. He's gotten 18 trigger points majority of those visits almost every 19 visit that included anywhere between six to fourteen 20 different spots that were injected. 21 Q. Just so we get clear on this, when Mr. Gambale 22 testified yesterday, I would like you to assume that 23 he testified that he said 10 or 14 injections that is 24 would be one this counts as one injection, correct, 25 one syringe? Plaintiff - Mandelbaum - Direct 29 1 A. Yes. 2 Q. Just so -- other than the Botox, has every 3 other procedure and injection and modality been 4 authorized by the entity that pays for his medical 5 care other than the Botox? 6 A. Yes. 7 Q. So, if you were permitted to do the Botox, 8 that's what you would be doing in lieu of, or instead 9 of the much lesser -- 10 A. Instead of the trigger points. 11 Q. You answered already in your question, but 12 have you continued to see Mr. Gambale from the time 13 you first saw him in September until today? 14 A. Yes. 15 Q. Has it been on that approximate monthly basis 16 you just testified to? 17 A. Yes. 18 Q. When did you start doing the trigger point 19 injections to him? 20 A. I believe it was the subsequent office visit 21 the next time he came in, which is a few weeks, or a 22 month later we started trigger points at that point. 23 Q. At the time you saw -- you said you requested 24 cervical epidurals. What I would like to do is hand 25 you up Plaintiff's 23 in evidence, that's a Dr. Arden Plaintiff - Mandelbaum - Direct 30 1 Keizman. I'm also going to use a medical illustration 2 in evidence Plaintiff's 20, and have you explain to 3 the jury using Dr. Keizman's records what an epidural 4 injection is, when Mr. Gambale got the epidural 5 injections, and if you can tell them what the hope is 6 when you do epidural injection into someone's neck. 7 Only because of the courtroom if you can see it from 8 there you can refer to Plaintiff's 20 that I'm holding 9 up? 10 A. Mr. Gambale was seen, this is prior to his 11 surgery, was seen by another pain management physician 12 Dr. Keizman who saw him and the goal at that point was 13 to, he was having a lot of neck pain and pain into his 14 arms. So, the goal at that point was to do epidural 15 injections. Epidural injection is an injection into 16 the neck area of a small dose of steroid medication. 17 You can see the needle, it's actually a fairly long 18 needle. It's done typically in this case it was done 19 with fluoroscopy, which is a live x-ray. 20 Q. I know the photo copies aren't that good, but 21 can you show the jury on one procedure note, the 22 pictures taken during the epidural injection for a 23 cervical epidural. If the picture were clear, would 24 you actually see the needle stopping before the spinal 25 cord? Plaintiff - Mandelbaum - Direct 31 1 A. Yes. It is a little far you can actually see 2 the needle in this injection. This is his head here. 3 This is the neck. These are the levels and there's 4 the needle. 5 Q. Just because I'm looking at where the green 6 comes out and there is a green fluid, obviously the 7 steroid is that what's known as the epidural space? 8 A. Yes. The epidural space is a space outside, 9 but very close to the spinal cord. If you go one 10 level deeper which you're talking about millimeters, 11 you can actually hit the spinal column. 12 Q. What can happen if you hit the spinal column? 13 A. You could in theory have paralysis. 14 Q. So, again what is the hope at the time Mr. 15 Gambale got the three epidural injections that are in 16 evidence he testified that he was told they were 17 hoping to avoid cervical surgery, is that what it's 18 for? 19 A. Yes. 20 Q. What is the hope that it would do? 21 A. The hope is again you're -- he was injected 22 with a steroid medication that is going to, you can 23 see the green, the medication is going to go and pass 24 along where those nerves are exiting from the spinal 25 column. Plaintiff - Mandelbaum - Direct 32 1 Q. We'll just point out those are the nerves, the 2 gray areas coming out from the spinal cord, the yellow 3 to the nerves, exiting nerve roots is what they're 4 called? 5 A. Right. So he has, you can see on top of the 6 vertebral body which is below, there is a disc. 7 Q. Here? 8 A. The big thing in the middle. That's the 9 vertebral body. There is a disc on top of that, it's 10 the disc that actually can move and hit against those 11 nerves. 12 Q. You mean the thing marked vertebral body? 13 A. Yes. The disc can actually move and move 14 toward one side, or the other and hit against the 15 nerve. There is a lot of inflammation that can be 16 against that nerve. The steroid envelopes that nerve 17 and decreases all the inflammation and pain and helps 18 it heal. 19 Q. Even though he already had three, and had one 20 surgery when you first saw him, you -- you had 21 recommended that he get another series; is that 22 correct? 23 A. Correct. 24 Q. That was because he was still radiating pain? 25 A. He was still having pain again. He was a Plaintiff - Mandelbaum - Direct 33 1 patient who had an injury, had neck pain, had a disc 2 in the neck had the epidural injections subsequently 3 had surgery, continued to have some pain afterwards. 4 The pain prior to the surgery after the surgery was 5 different from what he described, but again there was 6 irritation along those nerves after the surgery, scar 7 tissue causing it or just inflammation. So, the idea 8 behind the epidural again is to decrease that pain and 9 help his spasm and pain into his upper extremity, 10 shoulders. 11 Q. Can you tell the jury the difference 12 immediately between the words objective and subjective 13 finding? 14 A. Subjective findings are really what the 15 patient is telling you, is the information that you 16 get from the patient. Objective findings are what you 17 find either on physical examination, x-rays, MRI's are 18 objective findings. There's concrete black and white. 19 Q. What about spasm and more pertinently what 20 about torticollis and spasm, are they objective or 21 subjective? 22 A. They're objective findings. 23 Q. Why is that? 24 A. Because those muscles can be palpated. You 25 can feel those muscles, feel the tightness with Plaintiff - Mandelbaum - Direct 34 1 diminished range of motion of his neck. 2 Q. What about an EMG, is that objective or 3 subjective? 4 A. It is an objective finding. 5 Q. Why is that? Tell them how it works. I know 6 we told them what it was? 7 A. An EMG way is a painful test, but a test where 8 they put different needles, different muscles along 9 the upper extremity or lower extremity, but they put 10 needles in and test to see how the nerve is actually 11 conducting along the length of the nerve. It's not 12 something that the patient tells you if there is 13 abnormal findings, it is something that comes back as 14 an abnormal finding. 15 Q. Does Mr. Gambale today still have torticollis 16 through all of your treatment with him? 17 A. Yes. 18 Q. Is that in the neck? 19 A. Yes. 20 Q. Does Mr. Gambale have spasm in any other area? 21 A. Yes. 22 Q. What other area? 23 A. Spasm along the muscles in the thoracic area, 24 which is below the neck, in the chest and back, as 25 well as his lower back along those muscles. Plaintiff - Mandelbaum - Direct 35 1 Q. At the time you saw Mr. Gambale, just because 2 the jury is seeing this, it's in evidence, 8B, he had 3 what's called a one level fusion? 4 A. Yes. 5 Q. This is just an x-ray, right? 6 A. Yes. 7 Q. X-rays see something much different than an 8 MRI, which the jury may or may not see today, but 9 they'll certainly see later. 10 You actually see fluid and disc, you see the 11 brain. It would look vastly different, correct? 12 A. On an MRI, yes. 13 Q. Tell them the difference between an x-ray and 14 MRI? 15 A. X-rays show some of the soft tissue which is 16 those muscle areas. It shows mostly the bone. You 17 can see the bony structures. You can see the fusion 18 and placement of the fusion. 19 An MRI shows you much more of the discs, and 20 the soft tissues that is along those discs, and it can 21 also show you the nerves. 22 Q. Again, if you looking at the x-ray you 23 eventually learned that your patient had to undergo 24 another cervical surgery, right? 25 A. Yes. Plaintiff - Mandelbaum - Direct 36 1 Q. Looking at 8C now a two level fusion, I want 2 to ask you this question, from the time you first did 3 the range of motion testing to Mr. Gambale, and found 4 it to be limited, can you define how limited? Can you 5 tell us medically was it significant, it was -- 6 A. It was significant as far as his extension, 7 flexion. In other words, his forward and backward 8 movements of his neck. 9 Q. Would you expect that to be the case with 10 someone who has torticollis, and who has a two level 11 fusion that was still causing torticollis? 12 A. Yes. 13 Q. Does spasm limit the range of motion to 14 someone's neck? 15 A. Spasm, the range of motion, as well as the 16 fusion limits the range of motion. 17 Q. Does the torticollis limit the range of motion 18 more than a moderate spasm will? 19 A. Yes. 20 Q. Has there ever been a normal range of motion 21 medically that you've witnessed on Mr. Gambale from 22 the time you first saw him in September of 2010, until 23 the time you last saw him a week or so to whenever it 24 was before your vacation? 25 A. No. Plaintiff - Mandelbaum - Direct 37 1 Q. Would you disagree with any doctor that comes 2 in to this courtroom and says that Mr. Gambale doesn't 3 even have one degree, not even a degree loss of range 4 of motion, would you disagree with that, doctor? 5 A. Yes. 6 Q. You've testified -- you've worked in emergency 7 rooms before? 8 A. Yes. 9 Q. And as a medical doctor you're often called on 10 to review medical records; is that correct? 11 A. Yes. 12 Q. Did you review the hospital -- the Coney 13 Island record referenced in your notes. The Coney 14 Island record? 15 A. Yes. 16 Q. I'm going to just hand you up, this is in 17 evidence, and the number of course should be here 18 somewhere. Plaintiff's 4 in evidence. If you refer 19 to it, did you also review the record as indicated in 20 September of 2010 of Jeffery Mark, Plaintiff's primary 21 care, Plaintiff's 3 in evidence from the very day of 22 the accident an hour or so after the accident? 23 A. Yes. 24 Q. Okay. In Dr. Mark's record when he says the 25 cervical range of motion is limited due to pain, what Plaintiff - Mandelbaum - Direct 38 1 does that mean when a doctor says that? 2 A. That he has some injury to his neck. 3 Q. When a doctor says someone has pain in their 4 elbows, what does that mean? 5 A. That there is, or was an injury to his elbows. 6 Q. Dr. Mark in fact says the first doctor Mr. 7 Gambale saw states that Mr. Gambale tells him he just 8 fell one story at a construction site; is that right? 9 A. Yes. 10 Q. When Mr. Gambale goes to the emergency room 11 I'm just going to hold the blow-up of 4 A. When it 12 says he's at nursing ED triage, that's the -- and that 13 he is seen by Mary Paranbel RN, that means registered 14 nurse; is that right? 15 A. Yes. 16 Q. So the chief complaint, fell from one floor 17 complaining of pain all over the body, abrasions 18 noticed on right thigh and left lower leg, discussed 19 with Dr. Kim. That means that that nurse saw the 20 abrasions, and cuts on both legs; is that correct? 21 A. Yes. 22 Q. And that Mr. Gambale was telling that nurse 23 who was then speaking to Dr. Kim that he had 24 complaints of pain all over his body; is that right? 25 A. Yes. Plaintiff - Mandelbaum - Direct 39 1 Q. And did you -- they're over there, but did you 2 see the packet of x-rays for every body part that Mr. 3 Gambale had x-rayed, the hip, the pelvis, the back, 4 the neck, did you see all of those? 5 A. Yes. 6 Q. The records are in evidence as to what he had? 7 A. Yes. 8 Q. Did you see the one, the only one that was 9 labeled with more than a hundred asterisks that says 10 attention, abnormal result? 11 A. Yes. 12 Q. Can you tell the jury using, I think the model 13 we have here is the best, can you tell them what the 14 word lordosis means, and what that means in connection 15 with the spine? 16 A. The spine has a natural curve which you can 17 see from the head. 18 Q. Is that the lordosis? 19 A. Yes. 20 Q. This is the natural curve of the spine, the 21 neck comes in, then comes out, then goes in again at 22 the lower back? 23 Q. And when an x-ray report says that there is a 24 reversal, and straightening of the normal cervical 25 lordosis which may be related to muscle spasm, what Plaintiff - Mandelbaum - Direct 40 1 does that mean? 2 A. It means that normal curvature, the nice 3 curvature of the neck is no longer present, and 4 everything is essentially stiff, which typically which 5 the radiologist read could be from spasm of the neck 6 area. 7 Q. You've seen the x-ray, correct? 8 A. Yes. 9 Q. The cervical x-ray? 10 A. Yes. 11 Q. I'm going to hold up 5A, Mr. Gambale's x-ray 12 done several hours after the accident. The accident 13 happened at approximately 7:00, he's in the emergency 14 room by 11:51. Does -- what I'm showing you on the 15 right of 5A on the left, isn't that a reversal, do you 16 agree with the emergency room radiologist that there 17 is a reversal and straightening of the normal lordosis 18 of the neck? 19 A. Yes, you can easily see that is very 20 straightening. 21 Q. Can you tell the jury such as in a fall, or a 22 sudden movement of the neck that's not expected, why 23 or how does it happen that the body reverses its 24 normal lordosis? 25 A. Again when there is an accident in this case, Plaintiff - Mandelbaum - Direct 41 1 he had fallen, he gets thrown from side to side, his 2 head, his back, it causes damage. It's going to cause 3 the muscles, and the nerves, and everything to react 4 in this case. It did, it causes those muscles to 5 tighten up in his neck area. 6 Q. It's the muscles that actually put it 7 straight? 8 A. The muscles are pulling it straight, because 9 they're really tight. 10 Q. Can you go to if you don't find the initial 11 history, not the nursing, not the actual medical 12 history, the initial history and physical, do you see 13 it there? 14 A. I believe so. 15 Q. Do you have it there? 16 A. Yes. 17 Q. Okay. The chief complaint says I fell through 18 the floor; is that correct? 19 A. Yes. 20 THE COURT: This is referring still to 21 Plaintiff's 4. 22 MR. McCRORIE: Still in evidence Plaintiff's 4, 23 yes, your Honor. 24 Q. At the end of that note, the person taking and 25 documenting the note, when it says Mathew Lagazza PA Plaintiff - Mandelbaum - Direct 42 1 is a PA, a medical doctor, or RN, what does a PA mean? 2 A. PA is physician's assistant. 3 Q. Okay. What is a physician's assistant? 4 A. Physician's assistant is someone who is not a 5 medical doctor, but someone with some medical training 6 that will see and evaluate patients for the medical 7 doctor, and report to the medical doctor. 8 Q. So the PA, when they write 28-year old status 9 post fall through the floor about 12 feet while at 10 work presents to ER complaining of back, hip, ankle, 11 foot pain. Patient states he was at work. The floor 12 gave out, and he fell about 12 feet. Patient states 13 he hit numerous bars, and is unsure how he felt. Then 14 it goes on negative. Head injury, negative, loss of 15 consciousness. The fact that Mr. Gambale had said his 16 whole body hurts, and the fact that they have given 17 him an x-ray that says abnormal result, did the PA 18 document everything clearly in your opinion? 19 A. Yes. 20 Q. What about the fact that it doesn't say his 21 neck when the PA is talking to him, but they did a 22 neck x-ray? 23 A. They did a neck x-ray. They did x-rays of his 24 whole body, because he had the significant fall. 25 Q. The PA who I assume did an examination of the Plaintiff - Mandelbaum - Direct 43 1 neck when it says it's non tender, and there is no, 2 you know the word arrythmia what does that mean, a 3 neck that's not tender according to the physician's 4 assistant? 5 A. Many I read the same page that are you? 6 THE COURT: Counsel, just so we can all 7 follow along see what page of the exhibit you're on. 8 MR. McCRORIE: There is no page, the same ED, 9 initial history, neck. The one that's documented by 10 Mathew Lagazza. 11 THE COURT: The third page of the document. 12 MR. McCRORIE: Second page. Right there. 13 Q. What does non tender mean. 14 A. That there was no tenderness in the neck area. 15 Q. Is that consistent with the medical doctor 16 approximately an hour before Dr. Mark who notes his 17 neck is limited range of motion due to pain, or is 18 that inconsistent? 19 A. It is an inconsistent. 20 Q. Then the body parts on the x-rays are noted in 21 the record. 22 In the course of your treating Mr. Gambale, 23 did you review the EMG's as they're as further EMG's 24 were done? 25 A. Yes. Plaintiff - Mandelbaum - Direct 44 1 Q. If a second EMG were done in March of 2011, 2 and it now added the words, it reveals evidence, acute 3 and chronic words that weren't in the prior EMG, acute 4 and chronic right C5/C6 radiculopathy. What does that 5 mean if anything as to the difference between now it's 6 acute and chronic approximately a year later, a year 7 plus? 8 A. That he's had this condition for an extended 9 period of time. 10 Q. When specifically now takes out, also says 11 bilateral median, it has revealing evidence of right 12 ulnar sensory neuropathy across the elbow. Is that 13 singling out an issue with the right elbow on the 14 ulnar, as opposed to both of them being medial? 15 A. Yes. 16 Q. I'm going to do it real briefly with you 17 doctor. I'll let the other doctor do it. We saw what 18 an x-ray looks like where we saw the bones. Now, I'm 19 just going to hold up for you Plaintiff's 6A dated 20 7-23-09 says MRI of the cervical spine Michael's name 21 is on it. Is this an MRI of a cervical spine? 22 A. Yes. 23 Q. Is that his brain? 24 A. Yes. 25 Q. So, we see different items that we don't see Plaintiff - Mandelbaum - Direct 45 1 on the different images. Is the brain connected to 2 the spinal cord? 3 A. Yes. 4 Q. Is the spinal cord a solid cord up in the neck 5 and thoracic region as opposed to becoming not solid 6 in the lumbar? 7 A. Yes. 8 Q. Just so we're clear I'm going to point the 9 bones as on the model the bones are the white items in 10 the middle? 11 A. Yes. 12 Q. You can look at different views. There is a 13 T1 and T2 image; is that right? 14 A. Yes. 15 Q. They show different darkness of different 16 items. The smaller recognized tangles I'll call them 17 are they the discs? 18 A. Yes. 19 Q. Is the black that I'm pointing to is that the 20 epidural space or the spinal column? 21 A. Yes. 22 Q. If we were to take a Post It, a herniated disc 23 would be when the disc rips, and actually extends past 24 a vertebral body, is that right? 25 A. Yes. Plaintiff - Mandelbaum - Direct 46 1 Q. And it goes into either presses on a nerve 2 root or touches the spinal cord, or goes into a space, 3 it's not supposed to; is that correct? 4 A. Yes. 5 Q. And talk to the jury briefly, but we're going 6 to have it go more in detail with another doctor is a 7 tough fiber called the annulus fibrosus that protects 8 the intervertebral disc; is that correct? 9 A. Yes. 10 Q. The nucleus pulposus is the material in the 11 middle of the disc? 12 A. Yes. 13 Q. Sort of the fluid that allows it to bend and 14 move? 15 A. Yes, there is a give on the disc. 16 Q. The disc acts like a shock absorber between 17 the bones; is that correct? 18 A. Yes. 19 Q. The water like material it's not water, the 20 jelly like material, the nucleus pulposus is why we 21 can bend back and forth? 22 A. Yes. 23 Q. The annulus fibrosus holds it in? 24 A. That's a tougher material, the annulus 25 fibrosus. Plaintiff - Mandelbaum - Direct 47 1 A. Yes. 2 Q. If the annulus fibrosus tears through, and 3 through the nucleus pulposus can come out and push the 4 disc into a space that's not supposed to be, that 5 would be called a herniated disc; is that right? 6 A. Yes. 7 Q. As opposed to a much more common finding, 8 something called a bulging disc; is that right? 9 A. Yes. 10 Q. Now, just so we have it, I'm going to ask you 11 some questions. A bulging disc would be the outside 12 of the annulus fibrosus, does not rip it, actually it 13 doesn't do anything. The nucleus pulposus is just as 14 if you're sticking your finger on a balloon, just 15 bumping out a little; is that right? 16 A. Yes. 17 Q. Going to state that with all of your opinions 18 that you, you're the first doctor testifying, but I'm 19 going to ask that whenever you give an opinion that it 20 be stated with a reasonable degree of medical 21 certainty the standards here in court, okay? 22 A. Yes. 23 Q. If at any time you give an opinion and I don't 24 ask the question, if you can't state something with 25 reasonable certainty, please tell us, I'll try to ask Plaintiff - Mandelbaum - Direct 48 1 it each time as required, okay? 2 A. Yes. 3 Q. Just looking at the top disc what level is 4 that top disc where my finger is? 5 A. That's actually C2. C1 you don't see it on 6 there. 7 Q. That's what is this one? 8 A. C3. The bottom one here right as we're 9 getting down. 10 A. C7. 11 Q. So the C7 disc is clearly in its correct 12 place, correct? 13 A. Yes. 14 Q. As we go up to the C4, 5, and I put a Post It 15 there is any of the disc material in the epidural 16 space where it's not supposed to be? 17 A. No. 18 Q. Right here is it in the space where it's not 19 supposed to be the level he had operated on? 20 A. Yes, it's tough to see on there, but you can 21 see that it's turning out. 22 THE COURT: Can I make a suggestion rather 23 than keep turning the thing around, I would permit the 24 doctor to come off the stand so he can point it for 25 himself. I know you brought an easel. Plaintiff - Mandelbaum - Direct 49 1 MR. McCRORIE: Yes. I'll have him do it 2 quickly, and give it back -- 3 Q. Does he have a herniated disc at 4/5? 4 A. Yes. There is a difference over here at 4/5, 5 and the one below that. 6 Q. The one below that 5/6? 7 A. Yes. 8 Q. If you can just stay right there, doctor? 9 A. Sure. 10 Q. After the fusion when Mr. Gambale had an MRI, 11 Plaintiff's 7A, and this MRI is 10-12-2011 in fact the 12 disc underneath it that wasn't operated on, did that 13 in fact get larger, go into the space up and down? 14 A. Yes. It's pushing out more than it was 15 earlier. 16 Q. Did that, is that the second operation that 17 Dr. Camisa actually did, taking out that disc because 18 he still had radicular symptoms? 19 A. Yes. 20 Q. In your opinion did the disc C5/6 get bigger 21 from 2009 to 2011? 22 A. Yes. 23 Q. Only because we see an area here is that the 24 hardware that an x-ray shows actually you can see the 25 screws? Plaintiff - Mandelbaum - Direct 50 1 A. Yes. 2 Q. Okay. You can just have a seat. 3 You also saw the MRI reports, but you 4 interpret that yourself as having the herniations at 5 4/5, an 5/6? 6 A. Yes. 7 Q. The same levels that the other doctors who saw 8 it operated on it, and removed it; is that correct? 9 A. Yes. 10 Q. I would like you to for the purposes of our 11 questions, I would like to you assume the following, 12 having testified in court assume the following as been 13 in evidence okay, for the purposes of asking you 14 opinion questions. 15 I would like you to assume that Mr. Gambale 16 testified he was at a construction site on July 17, 17 2009? That he and several other workers were moving a 18 5 or 6 or 700-pound, a several hundred pound wall into 19 place. They were trying to drop it into place on the 20 floor below with someone down there guiding it. 21 I would like you to assume that he testified 22 that as he and the other workers lifted it up on the 23 count of three, that the board he was standing on 24 suddenly and without notice broke, going up sending 25 him and another worker, him and another worker down Plaintiff - Mandelbaum - Direct 51 1 into the hole, suddenly being pulled by the weight of 2 it. He says he was sucked into the hole, his 3 testimony was. 4 I would like to you further assume that he 5 testified to the jury had no control over the movement 6 of his body both when he was sucked in the hole that 7 he testified that the wall got stuck, and threw him 8 off of where he was holding. 9 I would like you to further assume he 10 testified he then his fall was broken a little by 11 hitting an individual below him and rebar that was 12 right next to the individual, and that was further 13 broken when he came off of that, and went on to the 14 concrete floor below. Each time testifying that he 15 had no control over the movement of his body including 16 his neck. 17 I would like you to further assume that just 18 as it's indicated in Dr. Mark, he went to his family 19 physician, and the first medical doctor he saw within 20 an hour or so after the accident he had cervical 21 reduced range of motion due do pain, pain in the 22 elbows. 23 I would like you to further assume he went 24 directly to the emergency room. It was the first time 25 he had ever been in an emergency room. That his Plaintiff - Mandelbaum - Direct 52 1 complaints to the medical personnel was pain all over 2 his body, just as we read before, and that amongst 3 other x-rays they did x-rays to his back, and to his 4 neck, and that there was an abnormal result from a 5 straightening of the normal lordosis. 6 I would like you to further assume that he had 7 the two MRI's that you saw here today but after the 8 first MRI he was diagnosed with herniated disc in two 9 levels, the two levels that you just showed the jury 10 4/5, 5/6. 11 I would like you to further assume with regard 12 to his neck, he had never once been to a doctor, had a 13 complaint and never had an MRI, and never been 14 diagnosed with any issues. 15 I would like you to further assume he had been 16 able to work as an iron worker unrestricted from 17 October 2007, until the day of the accident, 18 July 2009. 19 I would like you to further assume that he had 20 a cervical fusion that didn't relieve the radicular 21 pain on the 4/5, but that when he had the cervical 22 fusion on the 5/6, it actually relieved radicular pain 23 only from the neck going down to his hand. 24 I would like you to further assume everything 25 he's told you is true, and that he had the torticollis Plaintiff - Mandelbaum - Direct 53 1 and the spasm. Okay. 2 A. Yes. 3 Q. The question I have for you, the questions 4 regarding the neck we're going to do the neck first 5 only. 6 Do you have an opinion with a reasonable 7 degree of medical certainty as to the cause of the 8 herniations? 9 A. Yes. 10 Q. Please tell the jury what your opinion is, and 11 what you base it on? 12 A. In my opinion, given his injury, and his 13 history of having fallen approximately 12 feet, being 14 thrown around is an unexpected fall. 15 Q. In the the hypothetical I'll have you 16 testified he did say it was 12 feet? 17 A. 12 feet. You're talking someone whose 18 unexpectedly falling carrying a 700 pound wall. 19 Q. Or 500. 20 A. Material, any unexpected fall like that is 21 going to cause him to fall forward, backwards it's 22 very unpredictable, not like someone who could when 23 you know you're falling, you can prevent an injury. 24 He then had no prior history of any neck pain or other 25 any pain at all, and subsequently developed neck pain. Plaintiff - Mandelbaum - Direct 54 1 Pain shooting down to his upper extremity. I do feel 2 the mechanism of injury corresponds very well to what 3 he was exhibiting as far as pain, and subsequent 4 surgery that he had, and subsequent continued pain 5 that he's exhibiting now. 6 Q. Do you base it on all of the objective 7 findings you've already told the jury, the MRI which 8 you told them was objective, the EMG's, and actual 9 feeling and palpating of his body, and spasm? 10 A. Right. He had again there is one who had no 11 history of any neck problems, or upper extremity 12 problems. He did have significant changes on his EMG, 13 which is the nerve study, as well as the MRI of his 14 neck. 15 Q. I would like you to keep all of the 16 assumptions from the prior hypothetical. Now we're 17 going do talk about his back. 18 I would like to you assume he told the jury 19 twice in his life he had been to an orthopedic, one 20 April 2008, one September of 2008. In April of 2008 21 before the accident he had tightness in his back, 22 soreness, and an MRI was ordered. It showed a bulging 23 L4, L5 disc, not herniated bulge. 24 I would like you to further assume he wasn't 25 prescribed physical therapy, any need for injections. Plaintiff - Mandelbaum - Direct 55 1 He saw the doctor two or three times, no further 2 treatments occurred, and he never missed a day of work 3 from that tightness, or soreness he had in his back, 4 or bulging disc. 5 I would like you to further assume he 6 testified in September 2008 he tore his hamstring and 7 didn't make any complaints to that orthopedic doctor 8 about either his neck or his back, but we're dealing 9 with his back here. 10 I would like you to further assume that after 11 this current accident that his back was also 12 bothering, but his chief complaint was his neck, and 13 that the MRI that was done on the very same day, six 14 dates after the accident, or whenever it was July 23, 15 2009, in evidence revealed a now herniated disc at the 16 level that was bulged. 17 I would like you to further assume all of the 18 treatment that's in your notes, and all of the notes 19 that you -- we have here in evidence, the history, you 20 know about his back, and that he now had in the 21 evidence in records that are in evidence, radicular 22 pain down the leg, which was not present during the 23 bulge. 24 Do you have an opinion with a reasonable 25 degree of certainty as to the cause of the herniation Plaintiff - Mandelbaum - Direct 56 1 to his lumbar spine, and the symptoms that came with 2 that herniation? 3 A. Yes. 4 Q. What is the opinion as to the cause, and what 5 is the basis? 6 A. Mr. Gambale is a patient who did have an 7 episode of lower back pain sometime prior to this 8 accident. There was mostly spasm from his history and 9 he did have an MRI which did not show any, and I did 10 actually look at the MRI, it didn't show anything that 11 was really significant maybe a teeny bulge, and his 12 symptoms resolved at that point. It was back to 13 baseline. He did have the accident which is one 14 question. He did fall 12 feet, and did have 15 significant injury to his neck, back, subsequently he 16 developed back pain and pain and spasm along his lower 17 back, and did have some MRI findings which showed that 18 disc herniation in the lower back. 19 Q. I'm going to hand you up Plaintiff's 29 20 understanding you mostly treated neck and back, but 21 there are certainly notes where you reference in the 22 typed version his right elbow; is that correct? 23 A. Yes. 24 Q. You knew and were aware that he had right 25 elbow complaints, correct? Plaintiff - Mandelbaum - Direct 57 1 A. Yes. 2 Q. I believe another doctor will do it, but are 3 you aware he had right ulnar neuropathy surgery on 4 1-18-13, this is Plaintiff's 19? 5 A. Yes. 6 Q. In the records you have before you is the Dr. 7 Mark Pruzansky; is that correct? 8 A. Yes. 9 Q. So, using the same assumption from what Mr. 10 Gambale testified, I would like you to assume and add 11 to it, he testified he's never had pain in either of 12 his elbows, or complaints to any doctor despite having 13 full health coverage, and being at orthopedic doctors. 14 I would like you to further assume it was his 15 right elbow that hurt more than his left elbow. He 16 told Dr. Mark both of his elbows were hurting the very 17 day. Assume in evidence as part of Dr. Mark's record 18 is a separate orthopedic, he referred to the week of 19 the right there are right elbow MRI's and x-rays and 20 wrists splints that were prescribed, or given to him 21 to control his elbow issues. 22 I would like you to further assume that after 23 the second neck surgery when the radicular pain 24 stopped going from his down his right arm, from his 25 neck all the way down to the fingers, he remained with Plaintiff - Mandelbaum - Direct 58 1 right elbow pain, and shooting pain from the elbow to 2 the fingers. 3 I would like you to further assume that the 4 EMG's that we were already testified to showed there 5 is no evidence on September -- on March 3rd, 2011. No 6 evidence of a left ulnar neuropathy, but there is 7 evidence of a right ulnar neuropathy across the elbow, 8 right where he had the surgery from Dr. Mark 9 Pruzansky. 10 I would like you to further assume that after 11 the surgery, his radiating pain from the arm to the 12 right arm to the fingers went away, and that's just 13 stuck with a soreness all the time in his right elbow, 14 or soreness in his right elbow, whatever he testified, 15 but he still has pain there? 16 A. Yes. 17 Q. Do you have an opinion with a reasonable 18 degree of medical certainty as to whether or not Mr. 19 Gambale's right ulnar neuropathy as to the cause of 20 it? 21 A. Yes. 22 Q. The basis? 23 A. Mr. Gambale is a patient who did not have any 24 ulnar pathology. He didn't have any ulnar issues or 25 nerve issues. Plaintiff - Mandelbaum - Direct 59 1 Q. Can I add one thing in the emergency record is 2 read to you that he hit his arms on bars on the way 3 down. He doesn't know exactly where, but he hit his 4 arms on the way down? 5 A. Right. He did have that fall 12 feet. He did 6 bang his arms and did have injuries to his arms as 7 well. He did develop pain along that ulnar nerve, and 8 he did have an EMG which is the nerve study that 9 showed that the ulnar nerve was effected, and 10 subsequently he had surgery. 11 So, it appears within a reasonable degree of 12 certainty that all this injury that he had at least 13 from his ulnar nerve was from the accident. 14 Q. Just with opinions, do you have an opinion as 15 to the torticollis finding that Mr. Gambale has in the 16 neck as to the cause of it? 17 A. Again, Mr. Gambale who had no history of any 18 neck pain, spasm, again had that fall, developed 19 significant herniation in the neck area, subsequently 20 had surgery, had a lot of spasm and torticollis which 21 within any degree of medical certainty would, I'm 22 saying that it's from the accident that he sustained 23 from that fall. 24 Q. I would like to you assume that from the time 25 of the accident, up until about June of 2013, he had Plaintiff - Mandelbaum - Direct 60 1 regularly seen a neurologist, and I would like you to 2 further assume that Dr. Camisa the doctor at Hospital 3 for Special Surgery, that did the second surgery to 4 his neck, sent him to a neurologist, and cleared him 5 neurologically for the time being, saying he was 6 neurologically in tact. It's in the record. 7 I would like you to further assume that 8 although saying he's neurologically in tact that he 9 should continue with the medication, the therapy, and 10 in fact should continue seeing a pain management 11 specialist. Does -- what I would like to ask you is, 12 does the fact that there's no more for the time being 13 neaurological pain, or neurological symptoms, does 14 that indicate that Mr. Gambale is out of the woods? 15 A. No. 16 Q. In this case -- one last thing, are you aware 17 that it's been requested an authorization was actually 18 granted for fusing the levels above and below Mr. 19 Gambale's current fusions? 20 A. I am aware of that. 21 Q. In lieu of that, you did something else in 22 hopes to either avoid that or put that off for a 23 while, is that correct? 24 A. Yes. 25 Q. We're going to talk about that in just a Plaintiff - Mandelbaum - Direct 61 1 moment. Tell the jury what it means when they can 2 clear someone neurologically for the time being? 3 A. Again after his surgery his pain that he was 4 having from his elbow going down to his hand, some of 5 that numbness, and tingling did improve, but he had 6 severe headaches coming from the occipital nerve, from 7 the back of his neck, going to the top of his head. 8 On examination it's not going to show up as any 9 numbness, or tingling, but he does have pain and 10 tenderness. He still has all that muscle spasm going 11 down into his neck area as well. 12 So, even though he is neurologically in tact, 13 he still is exhibiting a lot of pain and spasm. 14 Q. Are you in fact aware in evidence the CT scan 15 which is a little different than and MRI of March 18, 16 2013 which shows adjacent level breakdown at those 17 levels, and on the CT scan mention that is, he has 18 torticollis. Were you aware of that finding, correct? 19 A. Yes. 20 Q. Have you in your career often seen a CT scan 21 being able to diagnose torticollis? 22 A. No. 23 Q. That's rare for it to actually be able to see 24 that, correct? 25 A. It's rare and showing that the muscles are Plaintiff - Mandelbaum - Direct 62 1 tight, and that straightening of the spine. 2 Q. Just because we have it in the record that 3 x-ray and MRI objective is a CT scan objective? 4 A. Yes. 5 Q. I want to talk about the other thing you did 6 in just a little bit. We're wrapping up, but Mr. 7 Gambale's future, first, had you advised Mr. Gambale 8 medically not to return to work as an iron worker 9 during the course of your treatment with him? 10 A. Yes. 11 Q. And he's told you and we've told you, you know 12 what an iron worker does, correct? 13 A. Yes. 14 Q. Would you expect Mr. Gambale with the injuries 15 he has to have pain in the future upon movements of 16 his neck and back? 17 A. Yes. 18 Q. For what period of time into the future with a 19 reasonable degree of medical certainty would you 20 expect Mr. Gambale to have pain to both his neck, and 21 his back during movement of him? 22 A. He will have pain for the rest of his life. 23 Q. What about these activities, bending, will he 24 have pain for the rest of his life during that 25 activity? Plaintiff - Mandelbaum - Direct 63 1 A. Yes. 2 Q. How about sitting or standing -- sitting for 3 long periods of time? 4 A. Yes. 5 Q. How about standing for long periods of time? 6 A. Yes. 7 Q. Squatting? 8 A. Yes. 9 Q. Kneeling? 10 A. Yes. 11 Q. Any form of climbing? 12 A. Yes. 13 Q. Now you talked about your awareness of the 14 request and the authorization to actually because 15 there's been a breakdown diagnosed to fuse the other 16 levels that will mean that he'll have two more sets of 17 screws, and a longer piece of hardware, correct? 18 A. Yes. 19 Q. I'm holding up Plaintiff's 8D. It will mean 20 that they have to take out the hardware that's 21 currently there once again, and fuse the other levels, 22 if he's going to get that? 23 A. Right. 24 Q. Did you put in a request for a form of 25 treatment of an implantable device to Mr. Gambale? Plaintiff - Mandelbaum - Direct 64 1 A. Yes. 2 Q. Now, just so we're clear that it wasn't put in 3 right before the trial, can you tell the jury in your 4 notes when you first requested a spinal cord 5 stimulator suggested it for Mr. Gambale? 6 A. We had seen Mr. Gambale in the beginning of 7 September 2010. He still had the neck pain. He did 8 not have the second surgery yet. He already had the 9 one surgery. Prior to the second surgery we 10 discussed, and given him information, this was in 11 February 2011 on the spinal cord stimulator. 12 Q. Is that in your notes? 13 A. Yes. 14 Q. When you said you gave him information, what 15 did you give him? 16 A. We have an informational video that goes 17 through all risks, benefits, tells about the spinal 18 cord stimulator. He was given it was a DVD as well as 19 discussions in the office regarding the spinal cord 20 stimulator. 21 Q. When the second neck surgery in April 2012 22 didn't relieve his torticollis, and didn't relieve his 23 continued limitation and pain to the neck, did there 24 come a time when you considered doing the spinal cord 25 stimulator now that the second surgery didn't work? Plaintiff - Mandelbaum - Direct 65 1 A. Yes. 2 Q. Before you go there, did you wait until after 3 the right arm surgery was performed in -- about a year 4 ago from now? 5 A. Yes. 6 Q. So, did you eventually put in for 7 authorization for a spinal cord stimulator? 8 A. Yes. 9 Q. Was that earlier in the year of 2013? 10 A. Yes. 11 Q. Did it take a little bit of time to get 12 authorization? 13 A. Yes. 14 Q. Did it take another doctor reviewing 15 everything? 16 A. Yes. 17 Q. Tell the jury what a spinal cord stimulator 18 is. 19 These are smaller boards that we have here 20 someone not marked that good. One is 27 -- let me 21 just see doctor. Doctor, one is 27 and one is 28. 22 I'm going to hand this up to you. 23 Did you in fact bring an implantable demo of a 24 spinal cord stimulator to show the jury what goes from 25 someone's body when they get that? Plaintiff - Mandelbaum - Direct 66 1 A. Yes. 2 Q. If you can take that out, and also the remote 3 control that needs to come with it doctor? 4 A. That's actually in my bag. 5 Q. I'll hand you up your bag with the court's 6 permission. 7 THE COURT: Sure. 8 Q. Before you're going to a spinal cord 9 stimulator, what's the first step to see before you 10 actually take the measure of implanting it in the 11 person's body? 12 A. Again the spinal cord stimulator is a modality 13 that is used almost as a last resort type of pain 14 treatment. So, he's been followed up from our office. 15 He had two surgeries. He still has pain there is, 16 this talk about subsequent other surgery which will I 17 guess when he had the fusion, he has a two level 18 fusion that puts a lot of strain on the disc above and 19 below the fusion. Now he has those two levels are not 20 moving so nothing is going to happen to those two 21 levels, but the levels above and below all the rest of 22 the spine is effecting those two levels. It does 23 happen very commonly, and in his case its happening 24 that those two other levels are breaking down he may 25 need surgery in the future. Plaintiff - Mandelbaum - Direct 67 1 Q. Can I ask you this in case I forget, if the 2 spinal cord stimulator goes in, and he needs the 3 future surgery, what will happen with the spinal cord 4 stimulator that is in his spine? 5 A. The stimulator would have to be removed at 6 that point. 7 Q. Does the spinal cord stimulator have to be 8 removed on a semi regular basis anyway? 9 A. Yes. 10 Q. Can you continue telling us about the trial 11 process, what happens? 12 A. Okay. In order to determine whether this is 13 effective at all, a temporary wire is actually placed 14 in the epidural space this temporary wire looks like 15 this. One of these wires are actually put in via 16 needle the spinal area, and you thread the wire within 17 the epidural space all the way through the neck area. 18 Q. Do you use that same fluoroscopy that you use 19 if you're putting an epidural in someone so you can 20 see where the wire is going in the spinal cord? 21 A. Yes. You want to see that the wire is placed 22 correctly up to the cervical area where we wanted to 23 cause that stimulation. What this wire does, it 24 actually gets hooked up to a battery. This is the 25 actual size of the battery, almost a pacemaker type Plaintiff - Mandelbaum - Direct 68 1 battery that is going to be implanted into usually we 2 put it by the buttocks area right below his waist. 3 Q. I'm going to hold up 27. I know it's awkward 4 there. Holding up Plaintiff's 28, even though -- 5 withdrawn. Would this be put in for him for his neck, 6 his back or -- 7 A. For his neck. 8 Q. Even though it's used for the neck, is it 9 still put in the, by the iliac crest or the hip? 10 A. Yes. You have to place the battery, it gets 11 implanted underneath the skin. The wire gets threaded 12 beneath the skin, and all the way up into the epidural 13 space. 14 Q. Let me use 27 as an indication. How does the 15 spinal cord stimulator work? What does it do and why 16 do the lights go all the way up to the brain on this 17 illustration? 18 A. What it's doing is pain, everyone feels pain 19 because the nerves are effected, the nerves in his 20 arm, his neck go to the brain. What you do through 21 this wire causes a little electrical pulse, or impulse 22 that stops that nerve from conducting all the way to 23 the brain. It changes his pain pattern what he feels. 24 Q. Did the spinal cord stimulator trial work? 25 A. Yes. We did a trial and left the stimulator, Plaintiff - Mandelbaum - Direct 69 1 the temporary wire in his neck area for five days, 2 then followed up with him, and he did state that he 3 had 50 percent relief of his symptoms. 4 Q. Just to save a little time, if the physician 5 from the entity that pays for it authorized it in 6 writing on October 30, 2013, when did you find out 7 that you could do that if you wanted to, if Michael 8 was going to submit to it? 9 A. I don't remember the exact date. It was a 10 couple of months before, I believe. 11 Q. Was there a plan to do it in December? 12 A. Yes. 13 Q. When did do you it? 14 A. We did it the beginning of January. 15 Q. January 9th? 16 A. Yes. 17 Q. Did you in fact put in for the authorization 18 now that it worked 50 percent to, put the permanent 19 spinal cord stimulator or permanent until it gets 20 replaced into his body? 21 A. Yes. 22 Q. Did Michael ever express to you whether or not 23 he wanted to do the spinal cord stimulator rather than 24 trying a four level fusion at the time in his life? 25 A. Yes. Plaintiff - Mandelbaum - Direct 70 1 Q. What did he say to you? 2 A. He wants to do the spine signal cord 3 stimulator to help with his pain, and not undergo a 4 third surgery. 5 Q. The 50 percent pain that it reduced just so 6 we're clear in the future will that get him off of his 7 medication? 8 A. No. 9 Q. Will it reduce some of the Percocet he said he 10 takes, eight Percocet a day. You're prescribing that? 11 A. Yes. 12 Q. Will it, is the hope of it, the stimulator to 13 get him off some of the Percocet? 14 A. Yes. 15 Q. If it did it by 50 percent, will he go down by 16 50 percent in the Percocet? 17 A. Possibly. 18 Q. How about the Lidoderm patch that he has, the 19 one that you prescribed. Tell the jury what that 20 does? 21 A. Lidoderm patch is a patch that has local 22 anesthetic with Lidocaine in it. That patch can be 23 placed over the neck and back muscles. It does help 24 with pain. 25 Q. In any event you also prescribed Xanax to him? Plaintiff - Mandelbaum - Direct 71 1 A. Yes. 2 Q. Spinal cord stimulator is not going to have 3 any effects on his mental health, or psyche will it? 4 A. No. 5 Q. Okay, and has Michael said he's -- I would 6 like you to assume he testified he's going to get it 7 when it's fully authorized, because the trial was 8 authorized instead of the surgery? 9 A. Correct. 10 Q. Or he could do either or? 11 A. Right. 12 Q. As soon as you get the authorization, are you 13 going to put it in his body? 14 A. Yes. 15 Q. I don't know if I asked this with a reasonable 16 degree of medical certainty, do you have an opinion as 17 to whether or not he can ever return to iron work, 18 even after he gets the spinal cord stimulator? 19 A. Mr. Gambale will not return to work as an iron 20 worker. 21 Q. How about any form of manual labor with his 22 injuries, and with the spinal cord stimulator will he 23 ever be -- take iron work out of it, any type of 24 construction work or manual labor? 25 A. No. Plaintiff - Mandelbaum - Direct 72 1 Q. Has he expressed to you an interest in trying 2 to get the relief from pain to go back to some form of 3 work? 4 A. Yes, we had discussed it. 5 Q. Despite the medications he's on, is there a 6 hope that he can, if the spinal cord stimulator, the 7 full one permanent one works, is there a hope that he 8 can go do sedentary work? 9 A. Yes. 10 Q. There is someone else coming for that, light 11 work, office job, or something like that. 12 With a reasonable degree of medical certainty 13 I would like you to assume in the records there is 14 physical therapy of about three times a week from the 15 accident till now, is that something that you've 16 prescribed as well, or told them to continue? 17 A. Yes. 18 Q. Can you tell the jury the purpose of 19 supervised physical therapy making that separate from 20 home therapy, supervised physical therapy for someone 21 with torticollis herniations in the neck, and back and 22 fusions? 23 A. Yes. Someone who's had a fusion you want to 24 make sure you're doing the exercises correctly, so he 25 doesn't reinjure himself. Plaintiff - Mandelbaum - Direct 73 1 Q. That's the purpose of having someone do it 2 supervised? 3 A. Yes. 4 Q. How about the pretty excellent machines that 5 they have there? 6 A. There is a lot of supervisors who make sure he 7 doesn't overdo it and strain his neck. 8 Q. You can assume when Michael gets his hamstring 9 injury he was playing softball, that he used to play 10 football, he was active. He liked to do these 11 sporting activities. Do you have an opinion with a 12 reasonable degree of medical certainty in the future 13 whether or not Michael can do any of those activities 14 he was able to do after the accident, the sporting 15 activities, the leagues he was in? 16 A. No, he's not going to do any of those 17 supporting activities. It's very risky, especially 18 someone whose had surgery, he can really damage 19 himself. 20 Q. It's in your records, but for how long has 21 Michael been on the Percocet, Lidoderm, and Xanax, is 22 that basically since you've first seen him? 23 A. Since we saw him. 24 Q. Do you have an opinion with a reasonable 25 degree of medical certainty in the future, even though Plaintiff - Mandelbaum - Direct 74 1 he has the spinal cord injury, he still needs the 2 Percocet and Lidoderm? 3 A. He will need it in the future. 4 Q. For what period of time, just for the record, 5 doctor? 6 A. Lifetime. 7 Q. Do you have an opinion with a reasonable 8 degree of medical certainty as to whether or not Mr. 9 Gambale in your specialty will continue to see a pain 10 management specialist, whether it's you, or someone 11 else? 12 A. Yes. 13 Q. For what period of time in the future? 14 A. For the extent of his life. 15 Q. The spinal cord stimulator is that a permanent 16 implantation other than when it has to get replaced? 17 A. Yes. 18 Q. Given that it's already been authorized, the 19 other two levels had adjacent level breakdown, the 20 torticollis is still there. Do you have an opinion 21 with a reasonable degree of medical certainty as to 22 whether or not he should continue with physical 23 therapy any time into the future? 24 A. He will need to continue physical therapy into 25 the future. Plaintiff - Mandelbaum - Direct 75 1 Q. It's tedious. Can you say it for the record 2 what period of time from the future? 3 A. For the rest of his life he's going to need 4 physical therapy. 5 Q. Let's just take your specialty, pain 6 management your practice, and what's customary in New 7 York. I would like you to assume non work related. 8 Someone has to go into their own pocket and pay you, 9 how much is a follow-up visit with a pain management 10 specialist for all you do, checking the spinal cord 11 stimulator, going over the visit each follow-up visit? 12 A. A routine follow-up visit, we charge patients 13 $200 for a routine follow-up visit. 14 Q. I don't know if I asked it, you said lifetime, 15 but what frequency over his life he's been seeing you 16 once a month, what frequency will Michael, with a 17 reasonable degree of medical certainty have to see the 18 pain management specialist given he is on the meds, 19 and has the spinal cord stimulator in his body? 20 A. He will need to follow-up in a monthly basis. 21 Q. Someone else is coming with a reasonable 22 degree of medical certainty, should he continue to get 23 MRI's in the future knowing there is an adjacent level 24 breakdown and should he continue to get other forms of 25 diagnostic tests, such as EMG and x-ray? Plaintiff - Mandelbaum - Direct 76 1 A. Yes. 2 Q. For what period of time in the future doctor 3 with a reasonable degree of medical certainty is he 4 going to need it periodically to reevaluate the 5 worsening of his neck, and pain ongoing degeneration? 6 Q. This time period you've accepted the rulings, 7 and -- you've accepted the payment that's lower than a 8 private pay, correct? 9 A. Yes. 10 Q. And do you have any understanding as to 11 whether or not in the future -- withdrawn. That will 12 be an instruction by the Court. 13 Thank you, doctor. No further questions. 14 THE COURT: Let's take a five-minute recess. 15 Doctor, I just remind you that you remain under oath. 16 Don't discuss your testimony with anyone. That's it. 17 (Whereupon, a brief recess was taken.) 18 (Recess). 19 THE COURT OFFICER: Jury entering. 20 (Whereupon, the jury entered the 21 courtroom.) 22 THE COURT: We're ready now for 23 cross-examination of Dr. Mandelbaum. I remind you, sir, 24 that you remain under oath. It's your witness. 25 Plaintiff - Mandelbaum - Cross 77 1 CROSS-EXAMINATION 2 BY MR. KAMINSKY: 3 Q. Good morning. My name is Alan Kaminsky. I 4 represent the Defendants, the parties that Mr. Gambale 5 is suing in this case. This is an odd layout of the 6 courtroom. I'm going to stand back here and thank 7 counsel for giving us a clear view of the vision of 8 each other. 9 Q. You mentioned that you don't think that Mr. 10 Gambale is going to be able to return to play 11 football, and things like that, true? 12 A. He won't be able to play football. 13 Q. Are you aware that he gave up playing those 14 things before this accident occurred? 15 A. No. 16 Q. You've been provided with medical records that 17 you reviewed before testifying today, correct? 18 A. Yes. 19 Q. Were you provided with a copy of what's called 20 his deposition, his Examination Before Trial? 21 A. No. 22 Q. Okay. If he testified that he was no longer 23 interested in playing those things regardless of this 24 accident, that's something you did not know, true? 25 A. True. Plaintiff - Mandelbaum - Cross 78 1 Q. Now you mentioned what your sessions cost a 2 person out of pocket. You said in New York the going 3 rate for a session with a pain management doctor such 4 as yourself is approximately $200? 5 A. That is our office fee. 6 Q. Now, how many times have you seen Mr. Gambale 7 so far? 8 A. We have seen him on at least a monthly basis 9 from the initial visit that he came in over the past 10 two and a half years. 11 Q. Do you know what your total fees have been for 12 all of those visits to date? 13 A. No. 14 THE COURT: Just for the routine office 15 visits. 16 Q. Yes, your fees for treating Mr. Gambale? 17 A. I don't know. 18 Q. Has he paid them out-of-pocket or have they 19 been paid some other way? 20 A. We are under contract with worker's comp, and 21 he is a worker's comp. patient, so we do bill worker's 22 comp. 23 Q. He has not paid any out-of-pocket expenses? 24 A. Not that I am aware of. 25 Q. On a going forward basis, do you know if he is Plaintiff - Mandelbaum - Cross 79 1 going to have out-of-pocket expenses to see you? 2 A. Again if he is under worker's comp, we are 3 under contract with worker's comp, or if he has an 4 insurance that we participate in, then we will take 5 those fees. 6 Q. So whether it's $50 per session, a hundred 7 dollars per session, $200 per session that doesn't 8 mean he's going to be out-of-pocket for those fees, 9 correct? 10 A. Again, if he has an insurance and the reality 11 is we doesn't take any insurance we're out of network 12 for most insurances. 13 Q. Okay. If it turns out that that's not the 14 case, he has the options of going to another pain 15 management doctor that would take his plan, true? 16 A. Yes. 17 Q. Similarly, I assume you've been studying or in 18 addition to the coverage, he may have from a work 19 related accident, or his own private insurance, 20 obviously you're aware of the Affordable Care Act, 21 correct? 22 MR. McCRORIE: Objection. Obamacare he is 23 crossing on. 24 THE COURT: I apologize. I was distracted by 25 the phone. Can you read back the question. Plaintiff - Mandelbaum - Cross 80 1 (Whereupon, the requested portion of the 2 record was read back by the Court Reporter.) 3 THE COURT: Sustained. 4 MR. KAMINSKY: Can we approach on that, your 5 Honor? 6 THE COURT: Sure. 7 (Whereupon, a discussion was held at the 8 bench off the record outside the presence of 9 the jury.) 10 THE COURT: The objection is sustained. 11 Q. Now, doctor, you were asked a series of 12 questions with the assumption that the Plaintiff fell 13 approximately 12 feet, correct? 14 A. Yes. 15 Q. If it turned out that Plaintiff did not fall 16 12 feet -- 17 MR. McCRORIE: Objection. 18 THE COURT: Sustained. It's already been 19 established, the jury was instructed previously that the 20 Plaintiff did fall that he fell through the hole. It 21 will be up to the jury to interpret how far the fall was 22 based on the evidence that was submitted. 23 I don't think we've heard any evidence of 24 anything other than 12 feet, so far, haven't we. 25 MR. KAMINSKY: No, we haven't, but subject to Plaintiff - Mandelbaum - Cross 81 1 connection while the doctor is here. 2 THE COURT: Subject to connection. Feel free 3 to ask the question. 4 Q. If it turns out Plaintiff didn't fall 12 feet, 5 would that potentially change any of your opinions? 6 A. Did you say he did not fall. 7 Q. I'm saying if there is evidence subject to 8 connection to suggest that he did not fall 12 feet, he 9 may have fallen, but not necessarily 12 feet, would 10 that change your opinions at all potential -- - 11 A. From my understanding he had fallen 12 feet. 12 Q. I understand yes or no -- 13 A. Regardless, whether he fell four feet, or 14 12 feet or 20 feet what happened happened. He did 15 injure himself. My opinion would not change. 16 Q. Okay. You said that he had no prior history 17 of problems to his neck to your knowledge, correct? 18 A. Yes. 19 Q. That's based upon the history that you tookk 20 from him, correct? 21 A. Yes. 22 Q. Prior to this accident, do you know if there 23 were any films taken of his neck to provide a 24 baseline? 25 A. I do not believe there were films. Plaintiff - Mandelbaum - Cross 82 1 Q. So, the first films you saw are post accident, 2 correct? 3 A. Yes. 4 Q. Now, are you a radiologist? 5 A. No. 6 Q. But you do have obviously medical training, 7 and you know how to read films, correct? 8 A. Yes. 9 Q. Would it be fair to say that the films you 10 first saw, the most recent films that were taken of 11 the accident showed what's called disc desiccation? 12 A. Can I look at the report? 13 Q. Sure. 14 A. Which report are you referring to. 15 Q. Well, let's go through the radiological film 16 in chronological order. Look at the first ones that 17 you have? 18 A. I have a report of an MRI of the neck dated 19 October 12, 2011. 20 Q. Let me make sure we're looking at the same 21 thing. 22 The date that you're looking at, doctor? 23 A. You may have a different MRI, the one I have 24 in my chart the earliest one here is October 12, 2011, 25 that I have at least immediately in front of me. Plaintiff - Mandelbaum - Cross 83 1 Q. Okay. Is there an indication of disc 2 desiccation? 3 A. Just looking at the impression? 4 Q. Yes. 5 A. This is after he had fusion, and it does state 6 that he had a fusion at C4, C5, and that he had 7 essential herniation at C3/4, and C5/6 was in the 8 impression. 9 Q. You know what we may not be looking at the 10 same thing. May I approach, your Honor? 11 THE COURT: You are not looking at the same 12 thing. 13 THE WITNESS: It is a different MRI. 14 Q. What is the date of that? 15 A. This is an MRI done on July 23, 2009. 16 Q. That's within a very short period of time 17 after the accident? 18 A. Yes. 19 Q. That's before the first surgery, correct? 20 A. Yes. 21 Q. Just look at the hi-lighted parts if you will. 22 Am I correct in saying there is reference to disc 23 desiccation in his cervical spine? 24 A. There is reference in this report to disc 25 desiccation, yes. Plaintiff - Mandelbaum - Cross 84 1 Q. Can you tell the jury what is disc 2 desiccation? 3 A. Desiccation really refers to shrinking of the 4 disc. 5 Q. Is that first of all when you treat patients, 6 some people have injuries related to trauma, correct? 7 A. Yes. 8 Q. Whether it be a work injury? 9 Q. Could be work injury, a car accident, whatever 10 it is, I would imagine you also treat people that have 11 degenerative problems, correct? 12 A. Yes. 13 Q. Could you tell the jury what is a -- how would 14 you explain a degenerative condition? 15 A. A degenerative condition is a condition that 16 progresses over an extended period of time. For 17 instance, a disc can over time from the day you're 18 born until you die there is progressive, we all have 19 degeneration of our disc and joints. 20 Q. That would have nothing to do with any 21 traumatic event, correct? 22 A. That's a normal process, and most patients do 23 not have pain. Most people don't have pain. 24 Q. My question is degeneration is something that 25 develops over time, correct? Plaintiff - Mandelbaum - Cross 85 1 A. Yes. 2 Q. Could that also be enhanced by the nature of 3 your day-to-day activities? 4 A. Degeneration is -- we all have day-to-day 5 activities. So, whatever we're going to do, there is 6 some degeneration that you're going to have again from 7 the day you're born, until you die, there is -- there 8 can be some degeneration of the disc. 9 Q. Let's accept as a starting point that everyone 10 will experience disc degeneration just by the mere 11 fact of the ageing process, correct? 12 A. Yes. 13 Q. That's a narrowing -- can you explain it. 14 You're nodding, but could you just explain that? 15 A. The degeneration is wear and tear of that 16 disc. 17 Q. And I had mentioned, let me be a little more 18 clearer. I apologize. Depending upon what a person 19 does day-to-day, that day-to-day activities that could 20 speed up the degeneration for lack of a better term, 21 correct? 22 A. Again your normal day-to-day activities is not 23 going to speed up your degeneration. 24 Q. Well, if someone is sitting at a desk all day, 25 are they as likely to have as much degeneration as Plaintiff - Mandelbaum - Cross 86 1 someone who is a construction worker for instance, if 2 you know? 3 A. It is a tough question to answer, because one, 4 everybody is a little different. Everybody will 5 degenerate a little different. Why does one we see 6 one 80-year old patient who has terrible degeneration, 7 and spinal stenosis, and one that is perfectly a 8 hundred percent healthy and does not have. 9 Again, activities, the normal process is there 10 is some degeneration. 11 Q. On 7-23-09, within days of the accident in 12 question, the first films that were taken by Gotham 13 Diagnostic Imaging of the Plaintiff's cervical spine 14 they showed disc desiccation, correct? 15 A. Yes. 16 Q. That is another term for degeneration, 17 correct? 18 A. No. 19 Q. Okay. Give us your medical definition then of 20 disc desiccation? 21 A. Disc desiccation is, it is not a real finding. 22 It is a finding where the disc is slightly smaller, or 23 when something desiccate, it loses water, or fluid. 24 You're talking about a disc that lost a little water, 25 or fluid in there. Plaintiff - Mandelbaum - Cross 87 1 Q. He had that at level C3, C4? 2 A. Correct. He also had a herniated disc which 3 is what the pathology is. 4 Q. He had the disc desiccation at C4, C5, 5 correct? 6 A. Yes. 7 Q. Desiccation that takes time to -- it's a 8 process that happens over time, correct? 9 A. Yes. 10 Q. In other words, in order for that to show up 11 on a film, it's not something that happened that day? 12 A. Correct. 13 Q. In fact, it's not something that happened that 14 week? 15 A. Correct. 16 Q. Or that month? 17 A. Correct. 18 Q. So, the desiccation that shows up on the 19 Plaintiff's films would in your opinion predate the 20 accident, correct? 21 A. Correct. 22 Q. Similarly Gotham Diagnostic Imagining did 23 MRI's of his lumbar spine, correct? Would it be 24 helpful if I showed it to you? 25 A. Please. Plaintiff - Mandelbaum - Cross 88 1 Q. Yes. 2 A. Yes. 3 Q. I know it's your first time testifying. I'm 4 not going to bite. 5 So they did an MRI of his spine as well, 6 correct? 7 A. Yes. 8 Q. In disc disease can you explain that term to 9 us? 10 A. Disc disease is, it's not a true medical term. 11 It just means that there is something going on with 12 the disc, whether it's wear and tear or herniation, or 13 I think it's a generalized term. 14 Q. So, it could mean either a herniation, or a 15 wear and tear? 16 A. You doesn't develop a disease. It's not like 17 an infection that happens to the disc. 18 Q. That was the term that was used in one of the 19 records, correct? 20 A. Yes. 21 Q. It could be attributable to wear and tear, 22 correct? 23 A. It could be attributable to wear and tear or 24 trauma. 25 MR. McCRORIE: When we say one of the records, Plaintiff - Mandelbaum - Cross 89 1 I don't want to interrupt. Can we clarify. 2 THE COURT: Yes. I would just ask everyone 3 to follow the same practice that we were using this 4 morning, which is when you refer to a record, just refer 5 to it by party, and either number, or letter so we can 6 keep the record clear, and also so we can follow along 7 on the exhibit list and make sure we're only using 8 records that are in evidence. 9 Q. It was from the -- Dr. Hausknecht dated 10 9-1-09. 11 THE COURT: Do either you or your associate 12 have the exhibit number for that. 13 MR. McCRORIE: That is 22, your Honor. 14 THE COURT: That's Plaintiff's Exhibit 22. 15 Q. Now, doctor what is scolioses? 16 A. Scolioses refers to abnormal curvature of the 17 spine. 18 Usually the spine should be when you feel it 19 going up to down is straight. Scolioses refers to a 20 curvature of the spine. 21 Q. Generally speaking, is scolioses a congenital 22 condition? 23 A. Not necessarily. 24 Q. Could it be? 25 A. Yes. Plaintiff - Mandelbaum - Cross 90 1 Q. Have you treated patients that have scolioses? 2 A. Yes. 3 Q. And could scolioses be attributable to non 4 traumatic events? 5 A. Yes. 6 Q. And is it fair of me to say that the -- an MRI 7 of Mr. Gambale's spine showed some scolioses? 8 A. I don't have that MRI you're referring to, but 9 I'm assuming that you're reading the MRI report, and 10 it shows scolioses. 11 Q. I'm reading the records of Dr. Marola. 12 Tell me if there is some indication of 13 scoliosis? 14 THE COURT: Again, please specify the parties, 15 letter number that its attributed to. 16 MR. McCRORIE: We have to mark them separately, 17 the MRI that's there's a thoracic MRI we'll mark 18 separately at a later time. 19 THE COURT: Okay. 20 THE WITNESS: That report showed mild 21 scolioses. 22 THE COURT: Not to the areas claimed to be 23 injured in this accident; is that correct. 24 MR. KAMINSKY: It says T1, T2. 25 THE COURT: Is it correct to say the Plaintiff - Mandelbaum - Cross 91 1 Plaintiff doesn't make a claim for the thoracic spine. 2 MR. McCRORIE: That's correct. 3 Q. Talking about his spine in general. Now, you 4 also spoke about his back, correct? 5 A. Yes. 6 Q. Now, are you aware of the Plaintiff having any 7 problems to his back before this accident occurred? 8 A. When I had seen him initially at the initial 9 office visit, I was not aware of any prior problems 10 with his back. 11 Q. Are you aware of any subsequent problems to 12 his back? 13 A. No traumatic injury to his back. 14 Q. Are you aware that he was involved in a motor 15 vehicle accident on December 21st of 2010 where he 16 injured his back, yes or no? 17 A. I am aware. 18 Q. And are you aware in that motor vehicle 19 accident an ambulance was called to the scene? 20 A. Yes. 21 Q. Do you know if any films were taken following 22 that accident? 23 A. There were no films taken as his symptoms 24 resolved. 25 Q. That answers my question. Plaintiff - Mandelbaum - Cross 92 1 Can you, without films, differentiate what 2 injuries he may have suffered in that motor vehicle 3 accident, and the injuries he may have suffered in 4 this accident to his back? 5 MR. McCRORIE: Objection. 6 THE COURT: Let's go to the side. 7 (Whereupon, a discussion was held at the 8 bench off the record outside the presence of 9 the jury.) 10 THE COURT: The objection is overruled. 11 Q. Can you -- do you have a way -- is there a way 12 that you can take the motor vehicle accident and say 13 these injuries are due to that, and the other injuries 14 are due to this, yes or no? 15 A. Again we are evaluating the patient for his 16 ongoing injuries what his pain was like beforehand. 17 He did state that he was in a motor vehicle 18 accident, I know an ambulance was called, but again I 19 don't know for what purpose, or how bad the accident 20 was, but whatever symptoms were exacerbated did 21 resolve thereafter. 22 Q. You said you don't know how bad the injuries 23 were? 24 A. It is a knee jerk reaction. There is an 25 ambulance, an ambulance comes. Plaintiff - Mandelbaum - Cross 93 1 Q. Did an ambulance come as a knee jerk reaction 2 after this accident that you're here testifying about? 3 A. Not that I am aware of. 4 Q. But an ambulance did come for his car 5 accident, true? 6 A. True. 7 Q. And in fact, after the accident in question, 8 when Mr. Gambale was asked if he wanted an ambulance 9 he actually said no. Are you aware of that? 10 A. Now I am. 11 Q. Now you are. Do you know the force of the car 12 accident? 13 A. No. 14 Q. But it was significant enough that he came to 15 see you the day of the accident, and tell you about 16 it, true? 17 A. True. 18 Q. You keep a scale on all your office visits. 19 You ask a patient, I guess, most doctors do this, tell 20 me how much pain you're feeling on a 1 to 10, correct? 21 A. Correct. 22 Q. 1 being I'm feeling pretty good, 5 means I've 23 got some pain generalize, 10 means I'm in bad shape, 24 correct? 25 A. Correct. Plaintiff - Mandelbaum - Cross 94 1 Q. On the day of the accident you asked him, give 2 me a number 1 to 10 being on that day he gave you an 3 eight, correct? 4 A. Correct. 5 Q. If we went through all the notes of the 6 different treatment, the days that you saw him for 7 routine follow-up, I'll call it when you ask him on a 8 1 to 10 usually he gave you a score much lower than 8, 9 correct? 10 A. I have to review my notes, but his pain scale 11 did go up to 8, 9, but I have to review all my notes. 12 Q. Before we do that, I want to, let's go back to 13 the day of the accident, okay. You said you looked at 14 the records from Coney Island Hospital, correct? 15 Q. When he went to Coney Island Hospital and give 16 his complaints, did he indicate that he suffered any 17 type of head injury, yes or no? 18 A. You're asking based on the note what's in the 19 note. 20 Q. I'm asking you what's based in the note. You 21 can refer to it. 22 A. I don't think if I have that note. 23 Q. With the court's permission, can I approach? 24 THE COURT: Please. 25 Q. Doctor, the symbols used by the hospital there Plaintiff - Mandelbaum - Cross 95 1 is a negative before head injury? 2 A. Correct. 3 Q. So, they asked him, did you have a head 4 injury, he said no, correct? 5 A. Correct. 6 Q. They asked him did you suffer loss of 7 consciousness, he said no, correct? 8 A. Correct. 9 Q. They asked him if he had a headache, he said 10 no, correct? 11 A. Correct. 12 Q. They asked him do you feel any dizziness, what 13 did he say? 14 A. No. 15 Q. Any nauseousness? 16 A. None. 17 Q. Vomiting? 18 A. None. 19 Q. Change in vision? 20 A. No. 21 Q. Numbness? 22 A. No. 23 Q. Tingling? 24 A. No. 25 Q. Sensory loss, correct? Plaintiff - Mandelbaum - Cross 96 1 A. Yes, no. 2 Q. So, he was asked all these questions in the 3 emergency room at first by the person that triaged 4 him, correct? 5 A. Correct. 6 Q. Is there any indication from the Plaintiff or 7 any of the medical records you saw that the Plaintiff 8 struck his head in any manner during this accident? 9 A. Other than the fact that they -- 10 Q. Sir, yes or no? 11 A. Yes. There is evidence that he had a head 12 injury. 13 Q. Here's my question to you. Your answering a 14 different question that I didn't ask. My question is, 15 is there anything in the medical records that Mr. 16 Gambale struck his head or injured his head in anyway 17 when he fell? 18 A. I would say anecdotally. 19 Q. I'm not interested in anecdotally? 20 A. The fact is, they got an x-ray of his neck. 21 He injured his neck. 22 Q. Let me try my question one more time. I'm 23 asking you if there is any indication that he struck 24 his head yes or no? 25 A. Not based on the information in there. Plaintiff - Mandelbaum - Cross 97 1 Q. Now, when he was in the hospital, this was 2 gone over by his attorney, but they checked his body, 3 correct? 4 A. Yes. 5 Q. Including his back? 6 A. Yes. 7 Q. They did a physical examination of his back. 8 Could you agree with me that the finding in the 9 emergency room was that it was a normal finding? 10 A. Whatever is stated in there, yes I agree with 11 that. 12 Q. Yes, normal finding? 13 A. Yes. 14 Q. When they checked his neurological, they do a 15 neurological examination to make sure that he is 16 thinking clearly, he is coherent, things like that, 17 correct? 18 A. Yes. 19 Q. AAO times 3, just briefly that means he was 20 alert, oriented, knew where he was, correct? 21 A. Yes. 22 Q. His cranial nerves were in tact? 23 A. Yes. 24 Q. What does that mean? 25 A. That the nerves, and there are nerves from the Plaintiff - Mandelbaum - Cross 98 1 brain, that they're all working properly. 2 Q. So, within a couple of hours after the 3 accident, when he reported to the emergency room, his 4 back was fine, now we're in the neuro examination and 5 that was fine, correct? 6 A. Correct. 7 Q. Motor and sensory examination were normal, 8 true? 9 A. True. 10 Q. So they checked his ability to have sensation 11 maybe they did a pinprick test, whatever they do 12 everything was normal, correct? 13 A. Correct. 14 Q. They also tell us what this means here, if you 15 would? 16 A. No cerebella signs. 17 Q. Yes. 18 A. Which are signs as far as referring to more of 19 a concussion type signs. 20 Q. No indication of that, correct? 21 A. No. 22 Q. They also checked his gait. They observed him 23 walk, correct? 24 A. Correct. 25 Q. That was normal, true? Plaintiff - Mandelbaum - Cross 99 1 A. As stated, yes. 2 Q. As stated, yes. Was this the finding of a 3 physician's assistant, or was this the findings of a 4 medical doctor. What do the initials M.D. mean? 5 A. A medical doctor. 6 Q. So, the findings of normal back, and the 7 findings of normal neurological examination in 8 addition to the initial findings by a physician is 9 when he then went to see the doctor was a medical 10 doctor just like you, who made these observations, 11 correct? 12 A. Right. 13 Q. Now, let's talk about his neck because they 14 also examined his neck, okay. 15 His neck showed no arrythmia. What does that 16 mean? 17 A. No arrythmia refers to redness. 18 Q. I pronounce it different. No swelling? 19 A. Ecchymosis refers to like a black and blue 20 type marks. It says non tender. 21 Q. Okay. So, if he had struck his neck for 22 instance you would expect to see black and blues. You 23 would expect to see swelling, redness, something like 24 that, correct? 25 A. Not necessarily. Plaintiff - Mandelbaum - Cross 100 1 Q. Not necessarily, but if -- 2 A. Depends on the type of injury. 3 Q. Okay, and it was non tender. What is the 4 significance, if any, of it being non tender? 5 A. That there was no spasm at that time. 6 Q. Okay. So, within a couple of hours of the 7 occurrence, there were no spasms, no tenderness, no 8 redness, no bruising, correct? 9 A. Yes. 10 Q. And his mental status he was alert, and his 11 overall appearance was he was in no distress, correct? 12 A. Correct. 13 Q. Then there is a nursing note that says 14 patient, not Plaintiff, PT, patient has no acute 15 medical distress. He was there with his mother, 16 correct? 17 A. Correct. 18 MR. McCRORIE: It just says no distress. 19 MR. KAMINSKY: No acute medical distress. 20 MR. McCRORIE: Okay. I'm looking at the one 21 that says no distress that's fine. You're right. 22 Q. What time did he arrive -- what time did he 23 first see someone in the emergency room? 24 A. I have to refer back to the record. 25 Q. What time was he discharged from the hospital? Plaintiff - Mandelbaum - Cross 101 1 A. Again, I have to refer to the record. 2 Q. When you say in your experience, people are in 3 and out of there real quick, do you know in fact how 4 long he was in the emergency room? 5 A. I do not know. 6 Q. Now, you said you had to cancel 50 to 60 7 appointments, correct? 8 A. Right. 9 Q. They're in and out of your office pretty 10 quick, right? 11 A. We have -- 12 Q. Yes or no. 13 A. There are, but there are a number of people 14 seeing patients. 15 Q. Let's go through your notes. If you would, 16 okay. First time you saw him was on September 3, 17 2010, correct? 18 A. Correct. 19 Q. You have to bear with me because this is 20 before you switched over to the electronics, so I'm 21 going to try to read this the best I can, all right. 22 Please correct me, I'm sure you will if I'm 23 wrong. 24 History of present illness, you acknowledge 25 that he told you there was no loss of consciousness, Plaintiff - Mandelbaum - Cross 102 1 correct? 2 A. Correct. 3 Q. You made a reference that there were no 4 fractures, correct? 5 A. Correct. 6 Q. Again, fractures are something that would show 7 up on an x-ray, correct? 8 A. Correct. 9 Q. Something that an orthopedic doctor would see 10 we've been over this briefly. So we know there is no 11 fractures? 12 A. Correct. 13 Q. No loss of consciousness which is consistent 14 with what the emergency room records? 15 A. Correct. 16 Q. You then said on you made a notation that he 17 did have anterior discectomy which some pain was 18 improved, correct? 19 A. Correct. 20 Q. You wrote down that he receives PT physical 21 therapy? 22 A. Yes. 23 Q. That provides temporary relief, correct? 24 A. Correct. 25 Q. Now there are a stack of physical therapy Plaintiff - Mandelbaum - Cross 103 1 records in court that are this thick. Physical 2 therapy for the most part, if we went through all 3 those records page by page, I'm not going to do that, 4 but if we did, the physical therapy is, this was 5 actually described by Mr. Gambale, but they would give 6 him a massage, correct? 7 A. Correct. 8 Q. To loosen up the spasms. They would put those 9 censors on you to provide some stimulation? 10 A. Yes. 11 Q. Again that's to relieve the pain, correct? 12 A. Correct. 13 Q. Would you agree with me that physical therapy 14 is conservative? 15 A. It is conservative, yes. 16 Q. So, when we look at the stacks of records when 17 he went for the physical therapy, I'm not saying 18 exclusively, but it primarily was limited to the 19 placement of heat pads, and massages, and teaching him 20 some exercises, correct? 21 A. Correct. 22 Q. That's what the physical therapy is, right? 23 A. Correct. 24 Q. Okay. And hear you made a note that the 25 physical therapy provided temporary relief, okay. Is Plaintiff - Mandelbaum - Cross 104 1 it's not a long term, so you get a massage, feel a 2 little bit better, last for a little while, same thing 3 with the pain medications, correct? 4 A. Correct. 5 Q. He also said the medication provided temporary 6 relief, correct? 7 A. Correct. 8 Q. You also made a note that he was being treated 9 for anxiety, and did you ever find out what the cause 10 of that anxiety was, yes or no? 11 A. It is per history, his anxiety and panic 12 attacks started after -- subsequent to the accident. 13 Q. As per history, did he or did he not tell you 14 that his anxiety is because his parents had just moved 15 to Las Vegas, yes or no? 16 A. No. 17 Q. That's not in your records? 18 A. Not in this office note. 19 Q. Is it in any of your office notes with Mr. 20 Gambale told you that his anxiety is because his 21 parents had just moved to Las Vegas, did you make a 22 note of that, yes or no? 23 A. I believe the notation is much later in the 24 office notes. 25 Q. I'm asking you if you made a notation of it Plaintiff - Mandelbaum - Cross 105 1 yes or no? 2 THE COURT: At any time. 3 Q. At any time? 4 A. At any time over the two years, 3 years, yes. 5 Q. You did? 6 A. Yes. 7 Q. Okay. Did you also make a notation that his 8 anxiety attributable to his moving in with his 9 girlfriend, yes or no at any time? 10 A. I have to review the note, but I believe it 11 was a mention of his parents moving, and his 12 girlfriend in that same note. 13 Q. On the next page -- by the way, you said 14 something important. You said you take a history, you 15 make a diagnosis. You come up with a plan of action, 16 ,and then you have a prognosis. 17 In other words your job as a pain management 18 person is to figure out what the problem is, come up 19 with a plan of action and get a good result, the best 20 result you can. That's your job, correct? 21 A. Correct. 22 Q. Would you agree with me that it's important in 23 order for that to happen, that your patients adhere to 24 the plan you give them? 25 A. Correct. Plaintiff - Mandelbaum - Cross 106 1 Q. If the patient doesn't do that, that could 2 have and most likely will have a negative effect on 3 their ultimate outcome, true? 4 A. True. 5 Q. Aren't there several times in your notes where 6 you warned Mr. Gambale that he was not following your 7 suggestions, and it was going to impair his recovery 8 because he was not sticking to your plan, yes or no? 9 A. I don't recall stating that you have to show 10 me the note. 11 Q. We'll go through that, okay. 12 Tell me, is it of any significance to you as a 13 medical doctor the condition of a person's spine, and 14 the spinal column, and the narrowing of the discs, and 15 the scolioses, and the stenosis, and all the other 16 terms that we've discussed, and you explained, can 17 they be effected by a person smoking cigarettes, yes 18 or no? 19 A. It's not a yes or no answer. 20 Q. Are you aware that there are significant 21 medical studies that show a direct correlation between 22 smoking cigarettes, and degenerative problems with a 23 person's spine, the entire spine yes or no? 24 MR. McCRORIE: Objection. 25 THE COURT: Sustained. Plaintiff - Mandelbaum - Cross 107 1 Q. Well, regardless of the fact that you said 2 it's not a yes or no question, did you in fact 3 instruct Mr. Gambale to stop smoking? 4 A. I instruct every patient that smokes to stop 5 smoking. 6 Q. Did you not correlate that to potential 7 problems with his spine? 8 A. Yes, smoking -- 9 Q. Yes or no, I'm not asking for an explanation. 10 We'll get to that? 11 A. Yes. 12 Q. Did you correlate his smoking to problems with 13 his spine yes or no? 14 A. To problems with his surgery, yes. 15 Q. In fact, the more a person smokes, the worst 16 the potential problems with the spine, and recovery 17 from surgery, correct? 18 A. It can, yes. 19 Q. Would you agree with me that Mr. Gambale told 20 you that from day one he smokes a pack of cigarettes a 21 day, which is a lot, true? 22 A. True. 23 Q. He said he has no plans on stopping, true? 24 A. True. 25 Q. And that could effect his recovery from his Plaintiff - Mandelbaum - Cross 108 1 surgery, true? 2 A. It can effect the fusion. 3 Q. Let's go to -- 4 THE COURT: Let me interrupt you for a 5 second. To say that we're 7 minutes to 1. We need to 6 break in time to have the jury out at 1:00, so it's okay 7 if you're not going to finish by 1:00, but I want to 8 warn you, if you get to a good breaking point, rather 9 than interrupt you in a middle of the question. 10 MR. KAMINSKY: The flip side to that, I don't 11 want to screw up the rest of the doctor's day -- 12 MR. McCRORIE: We have redirect. 13 MR. KAMINSKY: Okay. I don't feel guilty. 14 THE COURT: You're at a good stopping place. 15 MR. KAMINSKY: We can stop now. 16 THE COURT: That's fine. We're going to 17 recess. 18 THE COURT: We're going to recess. Do me a 19 favor, please be back ready to go at 2:15, which means 20 try to get back to the courtroom by 2:00, or a few 21 minutes thereafter with the understanding that we want 22 to try to be back in the box as soon as we open the 23 doors at 2:15. 24 You're reminded you may not discuss the case 25 amongst yourselves, or with anyone else. Please don't Plaintiff - Mandelbaum - Cross 109 1 speak to witnesses, lawyers, parties, any repetitive of 2 any of the parties, and just don't speak to anyone else 3 about the case, or do any research about it. We're in 4 recess. 5 I remind the witness that you remain under 6 oath. 7 (Whereupon, the jury left the courtroom.) 8 (Jury leaving). 9 (Whereupon, a luncheon recess was taken.) 10 (Continued on next page.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25