19
Deposition Resumed
Afternoon Session
Charlie knew that Corrigan must be pleased with the expert’s testimony since she could find nothing to challenge in the declarations of the other two experts. Malone, recovered somewhat after an early lunch, decided that he would simply start over with the witness and conduct a thorough examination in classic fashion. He had every right to do so to protect his client’s position. He had no other choice and by taking Barnes’s case he had a sworn duty to do his best.
“Doctor Borodin,” he said smiling broadly, “I’m Charles Malone, and I have a few more questions to ask you. I know you’ve been here with us for a while, nonetheless I have some more points to cover. Are you ready to resume your testimony?” he asked.
“Of course,” she confirmed.
“Excuse me for asking a personal question, but isn’t your surname also the name of an important Russian composer? Or am I confused?”
“Well, I agree with your opinion of importance. Actually, he was a not too distant relative on my father’s side, as it turns out. The family emigrated from Russia early in the 1900s, before the Bolshevik Revolution.”
“Yes, some of his music became the inspiration for the musical we know as ‘Kismet’ I believe,” Malone said, leading the witness in this immaterial line of getting acquainted questioning.
“I believe you are correct. That music was based on his Polovtsian Dances from Prince Igor, an opera, if I’m not mistaken,” she suggested.
“My favorite is, ‘I’m A Stranger in Paradise,’ he continued a bit wistfully. “But, we have work to do before we get off onto music. Are you ready to answer some more questions?”
“Oh, yes, certainly,” and she fixed him with a serious gaze.
“Very well. Doctor, how many times would you say that you have testified in any superior court of this state?”
“Do you mean in the courtroom as opposed to giving deposition testimony as I am doing at the moment?” she asked looking for clarification from Malone.
“Yes, that’s correct. I’m asking about the number of times you testified in court with a judge present?”
“One time with a judge and jury present,” she answered.
“And what type of forensic issues did you deal with in that case, please?”
“That one was a civil case involving a claim of wrongful death, as I understand it,” she continued.
“Did that case go on to conclusion and did the jury reach a verdict, if you know?”
“You know,” she volunteered, “I’m just not certain at this moment. I seem to remember that the parties reached a settlement before submitting for final decision by the jury,” she added, hoping that she had not confused two different cases in her mind.
“Doctor, in all the forensic work that you’ve performed in your career, have you ever handled a matter like this one involving issues of a patient with a compromised immune system?” Malone asked.
“No,” she said, without hesitation.
“Okay, very well,” said Malone, his mental wheels beginning to turn. “When did you first learn of your appointment to serve as the court’s expert in this case, please?”
“Maybe five to six months ago when I received a letter from the clerk of the court advising me of the appointment and asking for confirmation of my willingness to accept the assignment. Since there was a telephone number on the letterhead, I called the number and spoke with a very nice lady. I asked her for any detail she could supply. She asked me if I was willing to accept the assignment, and I said perhaps I would, once I understood more of what might be expected of me. I had a number of questions, but my main concern had to do with the area of specialization involved and whether my technical background fit the needs of this case and the judge who made the assignment.”
“What did the clerk tell you?” Malone asked, pursuing the point further.
“She said she was not very familiar with the case or its issues, but that she had instructions from the judge to send me copies of two declarations that other experts had filed in this case, if I was interested. I agreed to review the declarations and call her again. She sent them to me. I reviewed them and realized I had sufficient background, education, training, and experience to provide assistance to the court.”
“I assume, Doctor, that no one expected you to work for nothing on this case, is that right?” Malone asked.
“That’s correct, so when I called the clerk the second time, I mentioned my interest in accepting the appointment subject to making suitable financial arrangements for my compensation. The clerk assured me that there were more than ample funds available for payment of my fees, and in case of any dispute over any of my statements for services, the judge would have the final decision. I agreed to undertake the assignment.”
“What was your first activity on this file?” Malone continued.
“I supervise a graduate student at the university who is interested in the subject area, namely, immunology, and I enlisted his assistance in gathering the information for my review. I’m not altogether certain just what steps he took, but I do know that his efforts produced a large volume of materials,” she answered.
“Well, could you tell us what information he obtained that you subsequently reviewed?”
“Certainly. Copies of the entire court files including the probate case and the will contest that bore a different court file number from the probate file. Copies of Mr. Martorano’s charts from as many treatment centers as we could find. Fortunately for us, charts for such patients, that is, ones like Mr. Martorano who have primary immune deficiency disease processes, are relatively complete, especially if the patient has been under treatment for as long as he had before his death. And in his case, the records were well maintained and susceptible to full review. We also asked for medical records for the decedent’s offspring including his children and grandchildren,” and she paused to see if Malone might have another question.
“Very well, Doctor, I’ll bite. Why did you ask for the records of other family members?” he queried.
“It’s because of my training. I studied under a disciplined researcher who looked at everything he could find. Medical records of family members sometimes contain significant facts that would not surface if we didn’t take the time to investigate so thoroughly in these matters. Most of the searches are unproductive with respect to the ultimate outcome of the case, but I still believe finding and reviewing these records is crucial to carrying out my duties on the case,” she explained.
“Doctor, please continue with your testimony about your collection of file materials,” Malone encouraged.
“Well, I must say that my assistant was a very busy investigator. He summarized the information and organized it for my review. If he found something he thought to be of particular importance, he would bring it to my attention, and we would discuss it. If the material led to a dead end, so be it. On occasion a discovery would simply point us in another direction and more information would be retrieved to add to the many stacks in the office and adjacent storage room.”
“Doctor, if I may,” said Malone, “did you ever have any direct communication with Judge Crouch in this case, that you can recall?” he asked, prodding the witness some more.
“No, I never spoke to the judge or communicated with her in any fashion. You and Mr. Corrigan are the first and only people, other than the court clerk, that I have spoken with about the procedures in this case,” she replied.
“And your assistant, of course?” he corrected.
“Oh, yes, yes, of course,” she conceded.
“Doctor, I don’t see much of any paperwork about your person today. Do you still have all the file materials you collected for this case?” Malone pressed on.
“Oh yes, I certainly do,” she assured him.
“You apparently didn’t bring them all with you to this deposition today, is that correct?” he asked pointedly.
“They’re not in
this room, if that’s what you’re asking. But I have them with me in the sense that the rear end of my sports utility vehicle is chock full of them,” she further assured him.
“Then the documentation is available for counsel to inspect and review if that becomes necessary?” he asked, to confirm his point.
“No question,” she answered with a fixed gaze moving back and forth from lawyer to lawyer. “Unfortunately, the materials are so voluminous I decided it would be presumptuous on my part to spend your clients’ money on copies before a specific request is made for a set. I have been involved in some records-production cases where the copy service expenses grew very large. Nowadays, though, we can save some money by scanning copies, if need be.”
“We appreciate your consideration, Doctor, believe me we do. Well, my client does at any rate. We’ll be in touch at a later time if we need copies of anything you have. Thank you,” and Malone adjusted his questioning to anticipate the next level of the expert’s deposition testimony.
“Did you make reference to any technical manuals, textbooks, articles, or other writings of any kind in preparing yourself to offer an opinion in this case?”
“That’s a very broad but interesting question. One could well imagine almost any technical book I’ve ever had my hands on might qualify in some manner. To put it in perspective, I did not pull a technical book off the shelf to answer any specific point of interest that surfaced during my investigation in this case. On the other hand, much of my background as an expert comes from such books, and I certainly could not offer an opinion in this case without benefit of my studies over the years and occasional reference to such texts, if you understand my explanation. I did find an article by British researchers in the Journal of Infection, from 2002, if I recall correctly, entitled ‘Enteroviral Infections in Primary Immunodeficiency (PID): A Survey of Morbidity and Mortality,’ that I reviewed in reference to this assignment,” she explained.
“Well put, and I think I do understand your point,” he said, confirming her explanation of the obvious. “I take it that you make occasional reference to technical journals, then?”
Dr. Borodin nodded her agreement without making an audible response.
“I’m sorry, Doctor, is that a ‘yes’?” Malone continued in his protection of a complete record and transcript of the proceeding.
“Oh, yes, of course,” she replied.
“Other than the court clerk, did you, Doctor, speak with anyone about this case after you were employed as the court’s expert?”
“Yes.”
Corrigan’s head jerked noticeably. Malone’s antennae whirled to focus on the witness.
“With whom did you speak, please?” he probed.
“I have the name in my file, but can’t recall it at the moment. The person I spoke with is one of the daughters of the deceased, as I understand it,” she said.
“Any other persons that you may have spoken with?” Malone pressed forward.
“One or two family members,” she replied.
“Have you,” Malone continued, “prepared any written report of your findings and conclusions, if any, in this case?”
“No.”
“Do you have any plans to do so?” he pressed.
“No, not unless the judge so instructs me,” she clarified.
“Okay, Doctor, have we covered everything that you did and gathered along the way to prepare yourself to reach any opinions in this case? Take your time to be certain of you answer,” he cautioned.
“You have a description of all the paperwork, texts, periodicals, etc., and people I contacted. Oh, yes, I spoke with Mr. Martorano’s treating physician. Otherwise, I cannot think of anything or anyone that’s been left out,” she continued.
Malone had reached the pinnacle of the expert’s deposition when he would put the classic question to the witness. Yet his stomach was leaping in any direction it could find release. Never before had he ever been in such a difficult position. He had heard the expert tell Corrigan that she did not disagree with anything the other two experts had included in their declarations. He could very well ask further questions and learn that her vote made it three to zero against his client. On the other hand, he had no choice but to take the leap because all of Marti’s hopes were riding on this witness, and Malone could not report to his client without asking Dr. Borodin the next series of questions. He took a big breath and realized that Corrigan was sitting uncomfortably in his chair now, but paying close attention nonetheless.
“Doctor Borodin, did you reach an opinion in this case as to the cause of Mr. Martorano’s death?” A nervous hiss passed over his teeth and beyond pursed lips.
“Yes, Mr. Malone, I did reach an opinion.”
“And what is that opinion, if you please, ma’am?”
“It is my opinion that Mr. Martorano died as result of complications of a disease process. It’s a rather detailed explanation, if you’d like it described just now,” she offered. Corrigan was on his feet, wheezing uncontrollably. Everyone in the room agreed to take another break in the action for a minimum of twenty minutes and the room cleared for the moment. The actual elapsed time of the recess was closer to three quarters of an hour thereby allowing Corrigan time to pass along the unpleasant news of this revelation to his team. The room was re-occupied by all participants, and Malone resumed the questioning, looking every bit the part of the closer, the well-groomed matador.
“Okay, may the record show that the witness and counsel are back in the conference room, and we are resuming the oral deposition of Doctor Borodin. Are you ready, Doctor?”
“Yes, I am,” she affirmed. “Would you like me to amplify my previous response with respect to my opinion in this matter?” she continued, suggesting the direction of her further response by seeking further instruction.
“Certainly, please do,” Malone said, with exuberance and a hint of giddiness creeping into his voice that he could barely conceal. “And to put a focus on your further response, please describe for the record the basis of your opinion in whatever detail you deem necessary to make it clear to us laymen.”
Malone settled back into his chair paying rapt attention to the answer he just invited. Experienced trial lawyers knew that Dr. Borodin had just received the green light to take this case anywhere she wished, and she could fill volumes of transcripts if she chose. What followed was a professional and convincing summary of her findings.
“Mr. Martorano,” she began, “as all here are aware, was a patient under care for his condition known as primary immune deficiency disease. According to his chart information, he was classified as a patient with common variable immune deficiency, a category that implies a lifetime of immune system problems. If the term ‘acquired immune deficiency’ had been applied, we would have learned that this condition had developed later in life. Whether this is a significant distinction may not be important in this case, since he was not diagnosed or otherwise treated for the problem until midlife. His care was well supervised and delivered in my opinion. And that is based on my review of all his records I could obtain and my conversation with his treating physician whose office is located in Visalia, I believe.
“I am aware that a concern was voiced that the deceased may have perished for lack of proper maintenance of his treatment program, and if that were the case, his caregiver would possibly come under scrutiny concerning her practices in delivery of his immunoglobulin replacement therapy. Whether foul play may be involved in this case, I have no opinion on that issue and want to make it clear that while I agree with the other experts that she had opportunity to prevent her patient from getting his necessary dosages, over time I see nothing to suggest she exploited such circumstances.”
Corrigan shifted restlessly in his chair while Malone experienced a pseudo rejuvenation of youthful moments from a long-forgotten past. He maintained his cool, nonetheless, and stayed his course of questioning without anticipating any ultimate celebration over this incredible development in the te
stimony of the court’s expert.
After an exchange of nervous glances all around, Malone encouraged Dr. Borodin to continue with her testimony and explanation of her findings and opinions.
“Please continue, Doctor,” he prompted.
“Certainly, Mr. Malone. To test the theory that Ms. Barnes, I believe that is the name of the caregiver in this case, may have interfered with delivery of the routine dosages of medication I checked the patient’s chart for results of blood tests that would reflect the level of immunoglobulins in her patient’s immune system at the time of such tests. In other words, if the medication was appropriately being administered, it should be identified and subject to measurement by blood tests that are run for that very purpose. Actually, such tests are administered routinely to assist the treating physician. Adjustments may need to be made in the amount delivered, the timing and frequency of delivery, or even the means of delivery. When a patient is involved in a clinical study under the supervision of a teaching facility, such as UCSF, UCLA, or any number of other facilities in the country, such tests are routinely run during treatments. Outside of these studies, patients are monitored but not after every treatment, as I understand the process. In my experience, tests are run as needed or otherwise indicated by symptoms exhibited. I have encountered intervals of up to one year between blood tests where there is no indicated need for testing on more frequent intervals.
“In checking Mr. Martorano’s chart, I found that his blood was sampled, as a routine check every six months, and the most recent test was approximately forty-five days before he died. In my view, if his dosage had been diluted or diverted somehow, his IgG level would reveal such a condition. In his case his level of IgG was within normal limits for him, which ran at the typical values for CVID patients that are lower compared to normal persons. The blood sample results in his chart were essentially unchanged for more than two years as I recall. Accordingly, I concluded that he was receiving his prescribed dosage at the time of his death, because if it were being wasted or withheld his numbers would have dropped, per the test results, over time or at least over any time period that would be meaningful for our purposes in this matter.”
(2012) The Court's Expert Page 29
