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WOON
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Apr-02-2013 2:48 pm
Case Number: CGC-12-517517
Filing Date: Mar-29-2013 2:46
Filed by: VICK] MACK
Juke Box: 001 Image: 04001752
DECLARATION
MILAGROS LIBRE VS. BRIAN HART et al
001004001752
Instructions:
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27
4
DALE L. ALLEN, JR., SBN 145279
KEVIN P. ALLEN, SBN 252290
LOW, BALL & LYNCH
505 Montgomery Street, 7th Floor
San Francisco, California 94111 uporios Court
Telephone: (415) 981-6630
Facsimile: (415) 982-1634 MAR 292
dallen@lowball.com -_
kallen@lowball.com CLERK CF IHE COU
BY nL lohan ee?
Attorneys for Defendants * Deputy Clerk
BRIAN HART AND DESOTO CAB COMPANY, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
MILAGROS LIBRE, No. CGC-12-517517
(Unlimited Jurisdiction)
Plaintiff,
DECLARATION OF KEVIN P. ALLEN
vs. IN SUPPORT OF DEFENDANTS’
MOTION IN LIMINE EXCLUDING
BRIAN HART, DESOTO CAB COMPANY, EXPERT HYPOTHETICALS, WITHOUT
INC., DOES 1 TO 100, PRIOR APPROVAL (MIL #7)
Defendants.
I, KEVIN P. ALLEN, declare as follows:
1. I have personal knowledge of the following facts, and could and would testify
competently thereto if called upon to do so.
2. I am an attorney at law duly licensed to practice before all courts of the State of
California and am employed as an associate with the law firm of Low, Ball & Lynch, attorneys of
record herein for defendants BRIAN HART AND DESOTO CAB COMPANY, INC. (“Defendants”).
3. Attached as Ex. “A,” please find a true and correct copy of pertinent portions of the
deposition transcript of Yvonne Chiu.
It
Il
il
-1-
DECLARATION OF KEVIN P. ALLEN IN SUPPORT OF DEFENDANTS’ MOTION IN LIMINE EXCLUDING
EXPERT HYPOTHETICALS, WITHOUT PRIOR APPROVAL (MIL #7)
J:\2758\SF0005\Trial\MIL # 7\KPA Declaration for MIL # 7.docx4. Attached as Ex. “B,” please find a true and correct copy of pertinent portions of the
Li
Kevin P. Allen
deposition transcript of Dr. Robert McClellan.
Dated: March 13, 2013
-2-
DECLARATION OF KEVIN P. ALLEN IN SUPPORT OF DEFENDANTS’ MOTION IN LIMINE EXCLUDING
EXPERT HYPOTHETICALS, WITHOUT PRIOR APPROVAL (MIL # 7)
J:\2758\SF0005\Trial\MIL # 7\KPA Declaration for MIL # 7.docxEyl, AoPage 1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
MILAGROS LIBRE,
Plaintiff,
vs. No. CGC-12-517517
BRIAN HART, ET AL,
Defendants.
DEPOSITION OF YVONNE CHIU, MSPT, CV
San Francisco, California,
Monday, March t4, 2013
Volume I
Reported by:
STACEY M. DIODATI
CSR No. 11925
Job No. CS1614692 EXHIBIT A
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
MILAGROS LIBRE,
Plaintiff,
vs. No. CGC-12-517517
BRIAN HART, ET AL,
Defendants.
Deposition of YVONNE CHIU, MSPT, CV, taken on
behalf of Defendants, at Low Ball & Lynch 505 Montgomery
Street, 7th Floor, San Francisco, California, beginning
at 9:41 a.m. and ending at 12:30 p.m. on Monday, March
4, 2013, before Stacey M. Diodati, Certified Shorthand
Reporter No. 11925.
Veritext Corporate Services
800-567-8658 973-410-4040APPEARANCES :
For Plaintiff:
LAW OFFICES OF FRANCIS J. SHEHADEH
BY: FRANCIS J. SHEHADEH, ESQ.
819 Eddy Street
San Francisco, CA 94109
415.771.6174
fjshehadeh@gmail.com
For Defendant:
LOW BALL & LYNCH
BY: DALE L. ALLEN, JR., ESQ.
505 Montgomery Street, 7th Floor
San Francisco, CA 94111
415.981.6630
dallen@lowball.com
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INDEX OF EXAMINATION
Page
By Mr. Allen ...... eee ee ee eee eee eens 6
By Mr. Shehadeh ......... eee eee eee eee eee eee 70
Further Examination by Mr. Allen ...........--- 116
Further Examination by Mr. Shehadeh .......... 117
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INDEX OF EXHIBITS
Exhibits Description Page
Exhibit A Medical Records for 6
Milagros Libre
Exhibit B Yvonne Y. Chiu, MSPT, 10
Curriculum Vitae
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Page 6
San Francisco, California
Monday, March 4, 2013; 9:41 a.m.
YVONNE CHIU, MSPT, CV,
being administered the oath by the Certified Shorthand
Reporter to tell the truth, the whole truth, and nothing
but the truth, testified as follows:
EXAMINATION BY MR. ALLEN:
(Exhibit A was marked for identification.)
Q BY MR. ALLEN: Would you state your name for
the record, please.
A Yvonne Chiu.
Q Can you spell the last name?
A C-h-i-u.
Q Ms. Chiu, my name is Dale Allen. I apologize
for my voice. I have been fighting off, and I'm
actually on the rebound, from a cold/flu bug. But it's
still a little --
(Reporter interrupted the proceedings to
preserve the record.)
Q BY MR. ALLEN: Have you ever had your
deposition taken before?
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1 percentage. But it does occur.
2 Q BY MR. SHEHADEH: How many actual treatments
3 did you provide to Ms. Libre?
4 A Let me count.
5 Q Please.
6 A (Witness reviews document.)
7 If I count correctly, it should be five.
8 Q And in each of those visits, you asked for
9 subjective complaints?
10 A Yes.
11 Q Did you ever assess her credibility in the
12 sense of -- did you make a determination as to whether
13 or not she was a truthful person or not?
14 A There wasn't a reason for me to doubt what she
15 was reporting.
16 Q So her complaints of pain, you didn't doubt
17 them, did you?
18 A No. It correlated with where her fracture
19 was. So I believed her, yes.
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THE WITNESS: What kind of symptoms? You're
talking about her leg symptoms, the weakness?
Q BY MR. SHEHADEH: Yes, the weakness.
A The leg weakness.
Canl'that®s: worse)
You can answer the question.
THE WITNESS: I mean, it is actually such a
general question, it is really hard for me to answer. I
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sometimes there could be a lack of symptoms in medical
records, but that does not necessarily mean there are
lack of symptoms.
A I believe that can occur.
MR. ALLEN: Well, I'm going to move to strike.
That calls for speculation, is an incomplete question,
and the form of the question, [vague, overbroad.
Q BY MR. SHEHADEH: Why do you believe that can
occur?
MR. ALLEN: Objection; calls for speculation,
lacks foundation.
THE WITNESS: Why would that occur?
MR. ALLEN: Vague and overbroad.
Q BY MR. SHEHADEH: Why do you believe that it
is true that, just because there are no reported
symptoms in medical records, that does not necessarily
mean there are no symptoms?
MR. ALLEN: Objection; vague, overbroad, calls
for speculation.
THE WITNESS: I think it -- it can occur ina
general sense. There are people who have back pain and
when they come to therapy they might not address it
because they are going there for therapy for a different
reason.SBRBRSRSEGCE ES wee. ae one
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Page 84
THE WITNESS: It does not surprise me. It all
depends on the events after -- between her fall and up
to, what, July, you said? It all depends on what went
on between that period of time.
Q BY MR. SHEHADEH: I want to try to isolate the
symptoms of lower extremity weakness that came up a
couple of times in your treatment.
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Page 112
her treatment goals; right?
THE WITNESS: No, I think -- I think everybody
is at risk for falls. I think it depends on how high.
And I think our goal is to lower her risk of falls due
to that she -- due to her age, the fact that she is
using a cane, that actually kind of -- that's another
indicator.
And as I put down, a high risk for fall
because she was using an assistive device. That prompts
me to do certain functional balance tests that would
quantify and objectify her condition at the time.
There are times we cannot bring the patient
back to their prior level function, but what we want to
do is give her the means so that she can continue to
work on to return to her prior level and to lower her
risk of falls.
Q You mentioned the cane. Why is the cane
relevant in terms of Ms. Libre's risk for falls?
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"Social," it actually establish her living situation, so
have I have a better understanding of what she needs to
do, and understanding what their functional needs are in
terms of their living situation. That's how I -- that's
how I establish my goals for them.
She lives with her daughter, with an elevator,
so she doesn't need to go up and down stairs. But it
would be nice for her to be able to go up and down
stairs because she needs to be able to go outside of her
apartment.
She did report that she's been using a cane
for 10 years, so I think she will continue to use a cane
because she's been using a cane. She did report that
she had a fall a year ago because she was walking to the
bathroom in the middle of night and there was no light.
So I think, is it unusual -- I mean, is it
surprising that she fell again?
Q After discharge from PT.
A I mean that -- that is just one of those
questions -- it is unfortunate she fell again, but she
is at risk of falls, even to begin with. So it is
surprising? Probably not, mainly because she has
reported she has fallen before.
@ Andedid the
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THE WITNESS: You know, it's really hard to
really say something so generally. Mainly, I'm not too
sure what else happened during the accident.
What I do know is that she was hit and she had
a pubic fracture, and that's what I was addressing.
There was no other -- she did not describe that she was
hurting anywhere else. I did not inquire about it. So
it would be unfair for me to give a kind of a general
statement about her falling, because I'm not too sure
what other things -- what other injuries she had.
Q I think it is safe to assume you haven't read
her subsequent medical records?
A No.
Q At St. Mary's?
A No.
MR. SHEHADEH: I think I'm done.
FURTHER EXAMINATION BY MR. ALLEN:
Q BY MR. ALLEN: First one is when you
discharged her with these home exercise routines, was
the idea to see her continue to improve on her stamina
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MR. SHEHADEH: Thank you.
MR. ALLEN: Thank you very much.
(WHEREUPON, the deposition of YVONNE CHIU,
MSPT, CV was concluded at 12:30 p.m.)
YVONNE CHIU, MSPT, CV
DATE
800-567-8658
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Penalty of Perjury
I, YVONNE CHIU, MSPT, CV, do hereby declare under
penalty of perjury that I have read the foregoing
transcript; that I have made any corrections as appear
noted, in ink, initialed by me, or attached hereto; that
my testimony as contained herein, as corrected, is true
and correct.
EXECUTED this day of , 20
at 1
(city) (state)
YVONNE CHIU, MSPT, CV
Volume I
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Page 120
STATE OF CALIFORNIA ) Ss:
COUNTY OF SAN FRANCISCO )
I, STACEY M. DIODATI, C.S.R. #11925, a Certified
Shorthand Reporter in and for the State of California,
do hereby certify:
That prior to being examined, the witness named in
the foregoing deposition was by me duly sworn to testify
the truth, the whole truth, and nothing but the truth.
That said deposition was taken before me at the
time and place set forth and was taken down by me in
shorthand and thereafter reduced to computerized
transcription under my direction and supervision, and I
hereby certify the foregoing deposition is a full, true
and correct transcript of my shorthand notes so taken.
I further certify that I am neither counsel for. nor
related to any party to said action nor in anywise
interested in the outcome thereof.
IN WITNESS WHEREOF, I have hereunto subscribed
my name this day of , 2013.
Stacey M. Diodati
Certified Shorthand Reporter
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ERRATA SHEET
VERITEXT CORPORATE SERVICES
800-567-8658
ASSIGNMENT NO. CS1614692
CASE NAME: Libre v. Hart
DATE OF DEPOSITION: 3/4/2013
WITNESS' NAME: Yvonne Chiu
PAGE/LINE (S) / CHANGE REASON
NNN NNN NNN NN NNR NR NR RR SR RS RR
NNN NN NNN NNN NNN NR NR RS SRS
NNN NR NNR NNN NNN NNR NR RSS RRR SS
Yvonne Chiu
SUBSCRIBED AND SWORN TO
BEFORE ME THIS DAY
OF , 2013.
NOTARY PUBLIC
MY COMMISSION EXPIRES.
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800-567-8658 973-410-4040Eyk BROBERT TRIGG McCLELLAN, M.D
March 4, 2013,
Page 1 Page 3
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA | 1 APPEARANCES
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO} 2
UNLIMITED JURISDICTION 3. FOR PLAINTIFF:
—-000--- 4 LAW OFFICE OF FRANCIS J. SHEHADEH
MILAGROS LIBRE, 5 BY: FRANCIS J. SHEHADEH, ATTORNEY AT LAW
Plaintiff, 6 819 Eddy Street
vs. No. CGC-12-517517 7 San Francisco, California 94109
BRIAN HART, DE SOTO CAB 8 (415) 771-6174
COMPANY, INC., DOES 1 to 100, 9
Defendants. 10 FOR DEFENDANT:
HW i LOW BALL & LYNCH
12 BY: DALE ALLEN, ATTORNEY AT LAW
VIDEOTAPED DEPOSITION OF 13 505 Montgomery Street, 7th Floor
ROBERT TRIGG McCLELLAN, M.D. 14 San Francisco, California 94111
March 4, 2013 15 (415) 981-6630
16
17. THE VIDEOGRAPHER: PATRICK MURRAY
18
19
Reported by: 20
Bridget M. Mattos, CSR No. 11410 21
22
23
24
25
Page 2 Page 4
1 INDEX 1 BE IT REMEMBERED that, pursuant to
2. DEPOSITION OF ROBERT TRIGG McCLELLAN, M.D.| 2 Notice of Taking Deposition, and on Monday, March 4,
3 3 2013, commencing at the hour of 2:07 p.m., at 2550
4 EXAMINATION BY: PAGE 4 23rd Street, Building 9, 2nd Floor, San Francisco,
5 MR. SHEHADEH 6 § California 94110, before me, BRIDGET M. MATTOS, CSR
6 MR. ALLEN 13 6 No. 11410, there personally appeared
7 7
8 EXHIBITS 8 ROBERT TRIGG McCLELLAN, M.D.,
9 PAGE 9
10 Exhibit A Plastic model of the pelvis 10 10 called as a witness by Plaintiff, who, having been
WW (Retained by Mr. Shehadeh) 11 duly sworn, was examined and testified as is
12 ---000--- 12 _ hereinafter set forth.
13 13 ---000---
14 14
15 15
16 16
17 17
18 18
19 19
20 20
21 21
22 22
23 23
24 24 EXHIBIT B
Bridget Mattos & Associates
(415) 747-8710ROBERT TRIGG McCLELLAN, M.D
March 4, 2013
Page 9 Page 11
1 Q. Now, please point the -- what do you call 1 have?
2 that diagram -- or sorry, that model? Just a model of 2 A. She had hip pain, so she complained of pain
3 the pelvic? 3 in the front of the pel- -- the hip joint is right
4 A. Yes, just a plastic model of the pelvis. 4 here, so people that complain of pain in the front or
5 Q. Does it accurately represent the pelvis? 5 in the groin area can have injuries to the hip or the
6 A. It's close as a plastic model could. 6 pelvis in the front, so she complained of that. And
7 Q. And is it helping you illustrate your 7 she also complained of back pain, and J think arm pain
8 opinions in this case? 8 as well.
9 A. Yes. 9 Q. Do you have an opinion, more likely than not,
10 Q. And the bone that is fractured, what is the 10 within a reasonable degree of medical certainty, what
11 name of that bone? 11 is the cause of the back pain?
12 A. The superior pubic ramus. 12 A. The cause of her back pain, I don't -- you
13 Q. What does "superior" mean? 13. know -- I mean, I didn't see her before or after she
4 A. Superior -- you're an attorney, you went 14 was in the hospital. 1 mean, she was complaining of
15 to -- you went to school and learned what word -- 15 _ back pain in the notes there, so I presume it could be
16 "superior" means above and "inferior" means below - |16 related to the accident. She only was in the hospital
17 or on top of and below. 17 for a few days and then left. I didn't follow her up.
18 So this is the superior ramus, this is the : pivil cases, teh s only
19 inferior ramus.
20 Q. Ihave to ask very basic questions for
21 foundational purposes.
22 A. Okay. I'm sorry.
23 Q. Does the mark that you made with black pen
24 accurately represent where the fracture was in the
25 pubic ramus?
Page 10 Page 12
1 A. Fairly accurately, where we just looked at L oii It'svagieandambigious,
2 the X-ray. So this is fairly accurate as to where her 2 THE WITNESS: She complained of back pain
3. fracture occurred. 3 when she was in the hospital, so her complaints of
4 Q. And if you need to refresh your recollection, 4 back pain, more likely than not, were related to the
5 youcan. 5 accident. The cause of the back pain is not clear.
6 Do you have an opinion as to the cause, 6 MR. SHEHADEH: Q. Okay. But the --
7 within a reasonable degree of medical certainty, more 7 A. Pain is a symptom.
8 likely than not, as to that fracture? 8 Q. Sure.
9 A. Yes. 9 A. So the cause of the pain is not clear, since
10 Q. What is that? 10 the imaging was not -- didn't show a definite fracture
il A. Well, she was hit by an automobile. And 11 __ back there. She had degenerative changes, not a
12 there's different mechanisms of pelvic fractures, but 12 fracture.
13 this is probably a lateral compression injury, so the Qe Bit caniyou connect thé symptom to the
14 pelvis gets a compression injury from the side like traiitiiatic event?
15 this (indicating). a Yee
16 So either it's from the impact of the car, or ‘6 Qo And tists tore Hkely than Hot?
17 when she fell to the ground, the impact on the side of |17 x ;
18 the pavement. N
19 Q. Thank you. {9
120 Madam court reporter, can I mark the pelvic (20
21 model with Exhibit A, please?
22, (Whereupon Deposition Exhibit A a
23 was marked for identification.) 23
124 MR. SHEHADEH: Q. Doctor, when my client 24 ditiproper’ d :
25 went to SF General, what complaints of pain did she THE WITNESS: So you're asking me -- her
Bridget Mattos & Associates
(415) 747-8710ROBERT TRIGG McCLELLAN, M.D
March 4, 2013
Page 13 Page 15
1 complaint of back pain was more likely than not 1 Q. Do you know anything about the history of her
2 related to the accident on December 9th, 2011? 2 back?
3 MR. SHEHADEH: That's the question. 3 A. No.
4 THE WITNESS: That's the answer. I said it's 4 Q. Did you ever get any history of -- subsequent
5 related. More likely than not it was related to the 5 _ history, after your care for her?
6 accident. 6 A. You're talking about the history before the
7 MR. SHEHADEH: Thank you. I have no further | 7 accident?
8 questions. 8 Q. That's correct.
9 9 A. [know nothing about the history before or
10 EXAMINATION BY MR. ALLEN 10 after the accident.
1 il MR. ALLEN: I have no further questions.
12 MR. ALLEN: Q. Doctor, you mentioned that 12 Thank you, Doctor.
13 the X-rays didn't show any definitive issues with the 13 THE WITNESS: Thanks.
14 lower back, any other fractures, or -- 14 THE VIDEOGRAPHER: This concludes DVD Number
15 A. What do you mean, "definitive issues"? 15 1 and Volume | of Dr. Robert McClellan. We're off the
16 Q. Let me rephrase that. 16 record at 2:18.
17 The way I understood your answer was that the 17 (Deposition adjourned at 2:18 p.m.)
48 X-rays indicated that she had degenerative changes in |18
49 her -- and desiccation. 19
20 Would that be fair to say? 20
21 A. She had degenerative changes in her lower 21
22 back. 22
23 Q. And would you say it was -- those 23
24 degenerative changes were long standing? 24
25, A. Probably. 25
Page 14 Page 16
1 Q. Based on her age and what limited visual you 1 State of California )
2. had from those X-rays? 2 County of Marin )
3 A. Based on the appearance of the X-rays, the 3
4 CAT scan, and her age, they were, more likely than | 4 I, Bridget M. Mattos, hereby certify
5 not, longstanding. 5 that the witness in the foregoing deposition was by me
6 Q. And was there anything in those X-rays that 6 — duly sworn to testify to the truth, the whole truth
7 indicated she had suffered any type of trauma to her 7 _ and nothing but the truth in the within entitled
8 lower back as a result of the fall or striking by the 8 cause; that said deposition was taken at the time and
9 vehicle? 9 place herein named; that the deposition is a true
10 MR. SHEHADEH: Lacks foundation. Calls for 10 record of the witness's testimony as reported to the
41 speculation. 11 _ best of my ability by me, a duly certified shorthand
12 MR. ALLEN: Well -- 12 reporter and disinterested person, and was thereafter
13 THE WITNESS: Well, there's no acute 3 transcribed lnder my direction into typewriting by
14 fracture, but you have to remember the X-ray just computer; that the witness was given an opportunity to
15 shows the bone detail. It's not an MRI. Doesn't show 15 read, correct and sign the deposition.
46 ligaments. Doesn't show specifics of the soft tissues 1 l further certify that | am not
17 about the disk and other structures. 17 interested in the outcome of said action nor connected
18 Right, With an MRI. * ht tell if th 18 with or related to any of the parties in said action
Q Jeht. With an VUR?, you mig t tell if there 19 nor to their respective counsel.
19 was a hernia or a protrusion, or some kind of trauma 20 IN WITNESS WHEREOF, | have hereunder
20 in or about the ligaments of the spine? 21 subscribed my hand on March 4, 2013.
24 A. Correct. 22
22 Q. And there was no record of that, at least in
23 the records you looked at, and the film you looked at [23 BRIDGET M. MATTOS, CSR NO. 11410
beforehand?
A. Correct.
Bridget Mattos & Associates
(415) 747-8710ROBERT TRIGG McCLELLAN, M.D
March 4, 2013
Page 17 Page 19
1 Bridget Matos & Associates 1
2 Ross, California 94957 2 DISPOSITION OF TRANSCRIPT REVIEW
Phone: (415) 710-2501
3 Fatah 5) 453-4025 3 . . .
www.bmareporting.com 4 I certify that the witness was given the
4 March 6, 2013 5 _ statutory allowable time within which to read and sign
5 " 6 the deposition, and that:
6 ROBERT TRIGG McCLELLAN, M.D.
2550 23rd Street, Building 9, 2nd Floor 7 . .
7 San Francisco CA 94110 8 The witness failed to appear for such
8 Re: LIBRE vs. HART i «oni
Date of Deposition March 4, 2013 a reading and signing.
9
10 ROBERT TRIGG McCLELLAN, MD. . . oct
1 ‘Your deposition taken in the above-entitled W The witness has waived review/signature
matter has been transcribed. This deposition will be 12 on the record.
12 available at my office for reading and signing by you 1B
for a period of thirty (30) days from the date of this . . .
13 fewer after nich time the orginal of your hich 14 The witness has reviewed and signed the
jeposition will be sealed and sent to the office whic!
14 noticed the deposition, in accordance with Section 15 transcript and has made no changes.
2025(q)(1) of the California Code of Civil Procedure. 16
i 17 A correction letter has been submitted
” Sincerely, 18 and is attached to the transcript.
18 Bridget M. Mattos 19
CSRNO. 11410 20
19
20 21
an “ All Counsel Present 22 BRIDGET M. MATTOS, CSR 11410
2 23
23
4 24 Date.
25 25
Page 18
1 SIGNATURE AND ERRATA SHEET
2 (To be signed by deponent)
3 I, ROBERT TRIGG McCLELLAN, M.D., do hereby
4 declare under the penalty of perjury that the
5 — foregoing testimony is true and correct (with the
6 exception of the following changes listed below):
7
8
9 Page Line Change/Correction
10
i
12
13
14
15
16
17
18
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20
21
22 =Executedthis day of 2013.
23
24
ROBERT TRIGG McCLELLAN, M.D.
Bridget Mattos & Associates
(415) 747-8710
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WOON SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Apr-02-2013 2:48 pm Case Number: CGC-12-517517 Filing Date: Mar-29-2013 2:46 Filed by: VICK] MACK Juke Box: 001 Image: 04001752 DECLARATION MILAGROS LIBRE VS. BRIAN HART et al 001004001752 Instructions: Please place this sheet on top of the document to be scanned.Com nd Dn nH FF WN Pw RYN NN YB BB Be eB Be ee RB BR a F B8Nv & SF GC eH AAA BF BHF TS 27 4 DALE L. ALLEN, JR., SBN 145279 KEVIN P. ALLEN, SBN 252290 LOW, BALL & LYNCH 505 Montgomery Street, 7th Floor San Francisco, California 94111 uporios Court Telephone: (415) 981-6630 Facsimile: (415) 982-1634 MAR 292 dallen@lowball.com -_ kallen@lowball.com CLERK CF IHE COU BY nL lohan ee? Attorneys for Defendants * Deputy Clerk BRIAN HART AND DESOTO CAB COMPANY, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO MILAGROS LIBRE, No. CGC-12-517517 (Unlimited Jurisdiction) Plaintiff, DECLARATION OF KEVIN P. ALLEN vs. IN SUPPORT OF DEFENDANTS’ MOTION IN LIMINE EXCLUDING BRIAN HART, DESOTO CAB COMPANY, EXPERT HYPOTHETICALS, WITHOUT INC., DOES 1 TO 100, PRIOR APPROVAL (MIL #7) Defendants. I, KEVIN P. ALLEN, declare as follows: 1. I have personal knowledge of the following facts, and could and would testify competently thereto if called upon to do so. 2. I am an attorney at law duly licensed to practice before all courts of the State of California and am employed as an associate with the law firm of Low, Ball & Lynch, attorneys of record herein for defendants BRIAN HART AND DESOTO CAB COMPANY, INC. (“Defendants”). 3. Attached as Ex. “A,” please find a true and correct copy of pertinent portions of the deposition transcript of Yvonne Chiu. It Il il -1- DECLARATION OF KEVIN P. ALLEN IN SUPPORT OF DEFENDANTS’ MOTION IN LIMINE EXCLUDING EXPERT HYPOTHETICALS, WITHOUT PRIOR APPROVAL (MIL #7) J:\2758\SF0005\Trial\MIL # 7\KPA Declaration for MIL # 7.docx4. Attached as Ex. “B,” please find a true and correct copy of pertinent portions of the Li Kevin P. Allen deposition transcript of Dr. Robert McClellan. Dated: March 13, 2013 -2- DECLARATION OF KEVIN P. ALLEN IN SUPPORT OF DEFENDANTS’ MOTION IN LIMINE EXCLUDING EXPERT HYPOTHETICALS, WITHOUT PRIOR APPROVAL (MIL # 7) J:\2758\SF0005\Trial\MIL # 7\KPA Declaration for MIL # 7.docxEyl, AoPage 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION MILAGROS LIBRE, Plaintiff, vs. No. CGC-12-517517 BRIAN HART, ET AL, Defendants. DEPOSITION OF YVONNE CHIU, MSPT, CV San Francisco, California, Monday, March t4, 2013 Volume I Reported by: STACEY M. DIODATI CSR No. 11925 Job No. CS1614692 EXHIBIT A Veritext Corporate Services 800-567-8658 973-410-404024 25 Page 2 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION MILAGROS LIBRE, Plaintiff, vs. No. CGC-12-517517 BRIAN HART, ET AL, Defendants. Deposition of YVONNE CHIU, MSPT, CV, taken on behalf of Defendants, at Low Ball & Lynch 505 Montgomery Street, 7th Floor, San Francisco, California, beginning at 9:41 a.m. and ending at 12:30 p.m. on Monday, March 4, 2013, before Stacey M. Diodati, Certified Shorthand Reporter No. 11925. Veritext Corporate Services 800-567-8658 973-410-4040APPEARANCES : For Plaintiff: LAW OFFICES OF FRANCIS J. SHEHADEH BY: FRANCIS J. SHEHADEH, ESQ. 819 Eddy Street San Francisco, CA 94109 415.771.6174 fjshehadeh@gmail.com For Defendant: LOW BALL & LYNCH BY: DALE L. ALLEN, JR., ESQ. 505 Montgomery Street, 7th Floor San Francisco, CA 94111 415.981.6630 dallen@lowball.com ---000--- Page 3 Veritext Corporate Services 800-567-8658 973-410-4040Page 4 INDEX OF EXAMINATION Page By Mr. Allen ...... eee ee ee eee eee eens 6 By Mr. Shehadeh ......... eee eee eee eee eee eee 70 Further Examination by Mr. Allen ...........--- 116 Further Examination by Mr. Shehadeh .......... 117 ---000--- 800-567-8658 Veritext Corporate Services 973-410-4040Page 5 INDEX OF EXHIBITS Exhibits Description Page Exhibit A Medical Records for 6 Milagros Libre Exhibit B Yvonne Y. Chiu, MSPT, 10 Curriculum Vitae ---000--- Veritext Corporate Services 800-567-8658 973-410-404024 25 Page 6 San Francisco, California Monday, March 4, 2013; 9:41 a.m. YVONNE CHIU, MSPT, CV, being administered the oath by the Certified Shorthand Reporter to tell the truth, the whole truth, and nothing but the truth, testified as follows: EXAMINATION BY MR. ALLEN: (Exhibit A was marked for identification.) Q BY MR. ALLEN: Would you state your name for the record, please. A Yvonne Chiu. Q Can you spell the last name? A C-h-i-u. Q Ms. Chiu, my name is Dale Allen. I apologize for my voice. I have been fighting off, and I'm actually on the rebound, from a cold/flu bug. But it's still a little -- (Reporter interrupted the proceedings to preserve the record.) Q BY MR. ALLEN: Have you ever had your deposition taken before? Veritext Corporate Services 800-567-8658 973-410-4040Page 80 1 percentage. But it does occur. 2 Q BY MR. SHEHADEH: How many actual treatments 3 did you provide to Ms. Libre? 4 A Let me count. 5 Q Please. 6 A (Witness reviews document.) 7 If I count correctly, it should be five. 8 Q And in each of those visits, you asked for 9 subjective complaints? 10 A Yes. 11 Q Did you ever assess her credibility in the 12 sense of -- did you make a determination as to whether 13 or not she was a truthful person or not? 14 A There wasn't a reason for me to doubt what she 15 was reporting. 16 Q So her complaints of pain, you didn't doubt 17 them, did you? 18 A No. It correlated with where her fracture 19 was. So I believed her, yes. Veritext Corporate Services 800-567-8658 973-410-4040ee Se G Be Ser B ° 11 SBSBSBBeaggecs NOON b wW N wu Page 81 THE WITNESS: What kind of symptoms? You're talking about her leg symptoms, the weakness? Q BY MR. SHEHADEH: Yes, the weakness. A The leg weakness. Canl'that®s: worse) You can answer the question. THE WITNESS: I mean, it is actually such a general question, it is really hard for me to answer. I Veritext Corporate Services 800-567-8658 973-410-404024 sometimes there could be a lack of symptoms in medical records, but that does not necessarily mean there are lack of symptoms. A I believe that can occur. MR. ALLEN: Well, I'm going to move to strike. That calls for speculation, is an incomplete question, and the form of the question, [vague, overbroad. Q BY MR. SHEHADEH: Why do you believe that can occur? MR. ALLEN: Objection; calls for speculation, lacks foundation. THE WITNESS: Why would that occur? MR. ALLEN: Vague and overbroad. Q BY MR. SHEHADEH: Why do you believe that it is true that, just because there are no reported symptoms in medical records, that does not necessarily mean there are no symptoms? MR. ALLEN: Objection; vague, overbroad, calls for speculation. THE WITNESS: I think it -- it can occur ina general sense. There are people who have back pain and when they come to therapy they might not address it because they are going there for therapy for a different reason.SBRBRSRSEGCE ES wee. ae one 20 24 25 Page 84 THE WITNESS: It does not surprise me. It all depends on the events after -- between her fall and up to, what, July, you said? It all depends on what went on between that period of time. Q BY MR. SHEHADEH: I want to try to isolate the symptoms of lower extremity weakness that came up a couple of times in your treatment. Veritext Corporate Services 800-567-8658 973-410-404024 25 Page 112 her treatment goals; right? THE WITNESS: No, I think -- I think everybody is at risk for falls. I think it depends on how high. And I think our goal is to lower her risk of falls due to that she -- due to her age, the fact that she is using a cane, that actually kind of -- that's another indicator. And as I put down, a high risk for fall because she was using an assistive device. That prompts me to do certain functional balance tests that would quantify and objectify her condition at the time. There are times we cannot bring the patient back to their prior level function, but what we want to do is give her the means so that she can continue to work on to return to her prior level and to lower her risk of falls. Q You mentioned the cane. Why is the cane relevant in terms of Ms. Libre's risk for falls? Veritext Corporate Services 800-567-8658 973-410-4040Page 115 "Social," it actually establish her living situation, so have I have a better understanding of what she needs to do, and understanding what their functional needs are in terms of their living situation. That's how I -- that's how I establish my goals for them. She lives with her daughter, with an elevator, so she doesn't need to go up and down stairs. But it would be nice for her to be able to go up and down stairs because she needs to be able to go outside of her apartment. She did report that she's been using a cane for 10 years, so I think she will continue to use a cane because she's been using a cane. She did report that she had a fall a year ago because she was walking to the bathroom in the middle of night and there was no light. So I think, is it unusual -- I mean, is it surprising that she fell again? Q After discharge from PT. A I mean that -- that is just one of those questions -- it is unfortunate she fell again, but she is at risk of falls, even to begin with. So it is surprising? Probably not, mainly because she has reported she has fallen before. @ Andedid the Veritext Corporate Services 800-567-8658 973-410-404024 25 Page 116 THE WITNESS: You know, it's really hard to really say something so generally. Mainly, I'm not too sure what else happened during the accident. What I do know is that she was hit and she had a pubic fracture, and that's what I was addressing. There was no other -- she did not describe that she was hurting anywhere else. I did not inquire about it. So it would be unfair for me to give a kind of a general statement about her falling, because I'm not too sure what other things -- what other injuries she had. Q I think it is safe to assume you haven't read her subsequent medical records? A No. Q At St. Mary's? A No. MR. SHEHADEH: I think I'm done. FURTHER EXAMINATION BY MR. ALLEN: Q BY MR. ALLEN: First one is when you discharged her with these home exercise routines, was the idea to see her continue to improve on her stamina Veritext Corporate Services 800-567-8658 973-410-4040No a Dn UU B® WwW Page 118 MR. SHEHADEH: Thank you. MR. ALLEN: Thank you very much. (WHEREUPON, the deposition of YVONNE CHIU, MSPT, CV was concluded at 12:30 p.m.) YVONNE CHIU, MSPT, CV DATE 800-567-8658 Veritext Corporate Services 973-410-4040B WN FB ou ON KW PR Page 119 Penalty of Perjury I, YVONNE CHIU, MSPT, CV, do hereby declare under penalty of perjury that I have read the foregoing transcript; that I have made any corrections as appear noted, in ink, initialed by me, or attached hereto; that my testimony as contained herein, as corrected, is true and correct. EXECUTED this day of , 20 at 1 (city) (state) YVONNE CHIU, MSPT, CV Volume I Veritext Corporate Services 800-567-8658 973-410-404024 25 Page 120 STATE OF CALIFORNIA ) Ss: COUNTY OF SAN FRANCISCO ) I, STACEY M. DIODATI, C.S.R. #11925, a Certified Shorthand Reporter in and for the State of California, do hereby certify: That prior to being examined, the witness named in the foregoing deposition was by me duly sworn to testify the truth, the whole truth, and nothing but the truth. That said deposition was taken before me at the time and place set forth and was taken down by me in shorthand and thereafter reduced to computerized transcription under my direction and supervision, and I hereby certify the foregoing deposition is a full, true and correct transcript of my shorthand notes so taken. I further certify that I am neither counsel for. nor related to any party to said action nor in anywise interested in the outcome thereof. IN WITNESS WHEREOF, I have hereunto subscribed my name this day of , 2013. Stacey M. Diodati Certified Shorthand Reporter Veritext Corporate Services 800-567-8658 973-410-404024 25 Page 121 ERRATA SHEET VERITEXT CORPORATE SERVICES 800-567-8658 ASSIGNMENT NO. CS1614692 CASE NAME: Libre v. Hart DATE OF DEPOSITION: 3/4/2013 WITNESS' NAME: Yvonne Chiu PAGE/LINE (S) / CHANGE REASON NNN NNN NNN NN NNR NR NR RR SR RS RR NNN NN NNN NNN NNN NR NR RS SRS NNN NR NNR NNN NNN NNR NR RSS RRR SS Yvonne Chiu SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF , 2013. NOTARY PUBLIC MY COMMISSION EXPIRES. Veritext Corporate Services 800-567-8658 973-410-4040Eyk BROBERT TRIGG McCLELLAN, M.D March 4, 2013, Page 1 Page 3 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA | 1 APPEARANCES IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO} 2 UNLIMITED JURISDICTION 3. FOR PLAINTIFF: —-000--- 4 LAW OFFICE OF FRANCIS J. SHEHADEH MILAGROS LIBRE, 5 BY: FRANCIS J. SHEHADEH, ATTORNEY AT LAW Plaintiff, 6 819 Eddy Street vs. No. CGC-12-517517 7 San Francisco, California 94109 BRIAN HART, DE SOTO CAB 8 (415) 771-6174 COMPANY, INC., DOES 1 to 100, 9 Defendants. 10 FOR DEFENDANT: HW i LOW BALL & LYNCH 12 BY: DALE ALLEN, ATTORNEY AT LAW VIDEOTAPED DEPOSITION OF 13 505 Montgomery Street, 7th Floor ROBERT TRIGG McCLELLAN, M.D. 14 San Francisco, California 94111 March 4, 2013 15 (415) 981-6630 16 17. THE VIDEOGRAPHER: PATRICK MURRAY 18 19 Reported by: 20 Bridget M. Mattos, CSR No. 11410 21 22 23 24 25 Page 2 Page 4 1 INDEX 1 BE IT REMEMBERED that, pursuant to 2. DEPOSITION OF ROBERT TRIGG McCLELLAN, M.D.| 2 Notice of Taking Deposition, and on Monday, March 4, 3 3 2013, commencing at the hour of 2:07 p.m., at 2550 4 EXAMINATION BY: PAGE 4 23rd Street, Building 9, 2nd Floor, San Francisco, 5 MR. SHEHADEH 6 § California 94110, before me, BRIDGET M. MATTOS, CSR 6 MR. ALLEN 13 6 No. 11410, there personally appeared 7 7 8 EXHIBITS 8 ROBERT TRIGG McCLELLAN, M.D., 9 PAGE 9 10 Exhibit A Plastic model of the pelvis 10 10 called as a witness by Plaintiff, who, having been WW (Retained by Mr. Shehadeh) 11 duly sworn, was examined and testified as is 12 ---000--- 12 _ hereinafter set forth. 13 13 ---000--- 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 EXHIBIT B Bridget Mattos & Associates (415) 747-8710ROBERT TRIGG McCLELLAN, M.D March 4, 2013 Page 9 Page 11 1 Q. Now, please point the -- what do you call 1 have? 2 that diagram -- or sorry, that model? Just a model of 2 A. She had hip pain, so she complained of pain 3 the pelvic? 3 in the front of the pel- -- the hip joint is right 4 A. Yes, just a plastic model of the pelvis. 4 here, so people that complain of pain in the front or 5 Q. Does it accurately represent the pelvis? 5 in the groin area can have injuries to the hip or the 6 A. It's close as a plastic model could. 6 pelvis in the front, so she complained of that. And 7 Q. And is it helping you illustrate your 7 she also complained of back pain, and J think arm pain 8 opinions in this case? 8 as well. 9 A. Yes. 9 Q. Do you have an opinion, more likely than not, 10 Q. And the bone that is fractured, what is the 10 within a reasonable degree of medical certainty, what 11 name of that bone? 11 is the cause of the back pain? 12 A. The superior pubic ramus. 12 A. The cause of her back pain, I don't -- you 13 Q. What does "superior" mean? 13. know -- I mean, I didn't see her before or after she 4 A. Superior -- you're an attorney, you went 14 was in the hospital. 1 mean, she was complaining of 15 to -- you went to school and learned what word -- 15 _ back pain in the notes there, so I presume it could be 16 "superior" means above and "inferior" means below - |16 related to the accident. She only was in the hospital 17 or on top of and below. 17 for a few days and then left. I didn't follow her up. 18 So this is the superior ramus, this is the : pivil cases, teh s only 19 inferior ramus. 20 Q. Ihave to ask very basic questions for 21 foundational purposes. 22 A. Okay. I'm sorry. 23 Q. Does the mark that you made with black pen 24 accurately represent where the fracture was in the 25 pubic ramus? Page 10 Page 12 1 A. Fairly accurately, where we just looked at L oii It'svagieandambigious, 2 the X-ray. So this is fairly accurate as to where her 2 THE WITNESS: She complained of back pain 3. fracture occurred. 3 when she was in the hospital, so her complaints of 4 Q. And if you need to refresh your recollection, 4 back pain, more likely than not, were related to the 5 youcan. 5 accident. The cause of the back pain is not clear. 6 Do you have an opinion as to the cause, 6 MR. SHEHADEH: Q. Okay. But the -- 7 within a reasonable degree of medical certainty, more 7 A. Pain is a symptom. 8 likely than not, as to that fracture? 8 Q. Sure. 9 A. Yes. 9 A. So the cause of the pain is not clear, since 10 Q. What is that? 10 the imaging was not -- didn't show a definite fracture il A. Well, she was hit by an automobile. And 11 __ back there. She had degenerative changes, not a 12 there's different mechanisms of pelvic fractures, but 12 fracture. 13 this is probably a lateral compression injury, so the Qe Bit caniyou connect thé symptom to the 14 pelvis gets a compression injury from the side like traiitiiatic event? 15 this (indicating). a Yee 16 So either it's from the impact of the car, or ‘6 Qo And tists tore Hkely than Hot? 17 when she fell to the ground, the impact on the side of |17 x ; 18 the pavement. N 19 Q. Thank you. {9 120 Madam court reporter, can I mark the pelvic (20 21 model with Exhibit A, please? 22, (Whereupon Deposition Exhibit A a 23 was marked for identification.) 23 124 MR. SHEHADEH: Q. Doctor, when my client 24 ditiproper’ d : 25 went to SF General, what complaints of pain did she THE WITNESS: So you're asking me -- her Bridget Mattos & Associates (415) 747-8710ROBERT TRIGG McCLELLAN, M.D March 4, 2013 Page 13 Page 15 1 complaint of back pain was more likely than not 1 Q. Do you know anything about the history of her 2 related to the accident on December 9th, 2011? 2 back? 3 MR. SHEHADEH: That's the question. 3 A. No. 4 THE WITNESS: That's the answer. I said it's 4 Q. Did you ever get any history of -- subsequent 5 related. More likely than not it was related to the 5 _ history, after your care for her? 6 accident. 6 A. You're talking about the history before the 7 MR. SHEHADEH: Thank you. I have no further | 7 accident? 8 questions. 8 Q. That's correct. 9 9 A. [know nothing about the history before or 10 EXAMINATION BY MR. ALLEN 10 after the accident. 1 il MR. ALLEN: I have no further questions. 12 MR. ALLEN: Q. Doctor, you mentioned that 12 Thank you, Doctor. 13 the X-rays didn't show any definitive issues with the 13 THE WITNESS: Thanks. 14 lower back, any other fractures, or -- 14 THE VIDEOGRAPHER: This concludes DVD Number 15 A. What do you mean, "definitive issues"? 15 1 and Volume | of Dr. Robert McClellan. We're off the 16 Q. Let me rephrase that. 16 record at 2:18. 17 The way I understood your answer was that the 17 (Deposition adjourned at 2:18 p.m.) 48 X-rays indicated that she had degenerative changes in |18 49 her -- and desiccation. 19 20 Would that be fair to say? 20 21 A. She had degenerative changes in her lower 21 22 back. 22 23 Q. And would you say it was -- those 23 24 degenerative changes were long standing? 24 25, A. Probably. 25 Page 14 Page 16 1 Q. Based on her age and what limited visual you 1 State of California ) 2. had from those X-rays? 2 County of Marin ) 3 A. Based on the appearance of the X-rays, the 3 4 CAT scan, and her age, they were, more likely than | 4 I, Bridget M. Mattos, hereby certify 5 not, longstanding. 5 that the witness in the foregoing deposition was by me 6 Q. And was there anything in those X-rays that 6 — duly sworn to testify to the truth, the whole truth 7 indicated she had suffered any type of trauma to her 7 _ and nothing but the truth in the within entitled 8 lower back as a result of the fall or striking by the 8 cause; that said deposition was taken at the time and 9 vehicle? 9 place herein named; that the deposition is a true 10 MR. SHEHADEH: Lacks foundation. Calls for 10 record of the witness's testimony as reported to the 41 speculation. 11 _ best of my ability by me, a duly certified shorthand 12 MR. ALLEN: Well -- 12 reporter and disinterested person, and was thereafter 13 THE WITNESS: Well, there's no acute 3 transcribed lnder my direction into typewriting by 14 fracture, but you have to remember the X-ray just computer; that the witness was given an opportunity to 15 shows the bone detail. It's not an MRI. Doesn't show 15 read, correct and sign the deposition. 46 ligaments. Doesn't show specifics of the soft tissues 1 l further certify that | am not 17 about the disk and other structures. 17 interested in the outcome of said action nor connected 18 Right, With an MRI. * ht tell if th 18 with or related to any of the parties in said action Q Jeht. With an VUR?, you mig t tell if there 19 nor to their respective counsel. 19 was a hernia or a protrusion, or some kind of trauma 20 IN WITNESS WHEREOF, | have hereunder 20 in or about the ligaments of the spine? 21 subscribed my hand on March 4, 2013. 24 A. Correct. 22 22 Q. And there was no record of that, at least in 23 the records you looked at, and the film you looked at [23 BRIDGET M. MATTOS, CSR NO. 11410 beforehand? A. Correct. Bridget Mattos & Associates (415) 747-8710ROBERT TRIGG McCLELLAN, M.D March 4, 2013 Page 17 Page 19 1 Bridget Matos & Associates 1 2 Ross, California 94957 2 DISPOSITION OF TRANSCRIPT REVIEW Phone: (415) 710-2501 3 Fatah 5) 453-4025 3 . . . www.bmareporting.com 4 I certify that the witness was given the 4 March 6, 2013 5 _ statutory allowable time within which to read and sign 5 " 6 the deposition, and that: 6 ROBERT TRIGG McCLELLAN, M.D. 2550 23rd Street, Building 9, 2nd Floor 7 . . 7 San Francisco CA 94110 8 The witness failed to appear for such 8 Re: LIBRE vs. HART i «oni Date of Deposition March 4, 2013 a reading and signing. 9 10 ROBERT TRIGG McCLELLAN, MD. . . oct 1 ‘Your deposition taken in the above-entitled W The witness has waived review/signature matter has been transcribed. This deposition will be 12 on the record. 12 available at my office for reading and signing by you 1B for a period of thirty (30) days from the date of this . . . 13 fewer after nich time the orginal of your hich 14 The witness has reviewed and signed the jeposition will be sealed and sent to the office whic! 14 noticed the deposition, in accordance with Section 15 transcript and has made no changes. 2025(q)(1) of the California Code of Civil Procedure. 16 i 17 A correction letter has been submitted ” Sincerely, 18 and is attached to the transcript. 18 Bridget M. Mattos 19 CSRNO. 11410 20 19 20 21 an “ All Counsel Present 22 BRIDGET M. MATTOS, CSR 11410 2 23 23 4 24 Date. 25 25 Page 18 1 SIGNATURE AND ERRATA SHEET 2 (To be signed by deponent) 3 I, ROBERT TRIGG McCLELLAN, M.D., do hereby 4 declare under the penalty of perjury that the 5 — foregoing testimony is true and correct (with the 6 exception of the following changes listed below): 7 8 9 Page Line Change/Correction 10 i 12 13 14 15 16 17 18 19 20 21 22 =Executedthis day of 2013. 23 24 ROBERT TRIGG McCLELLAN, M.D. Bridget Mattos & Associates (415) 747-8710