Party Discovery: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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28

MCKENNA LONG é&
ALDRIDGE LL?
ATIORNEYS AT Law
SAN FRANCISCO

LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
ALECIA E. COTTON (BAR NO. 252777)
MCKENNA LONG & ALDRIDGE LLP
101 California Street

4lst Floor

San Francisco, CA 94111

Telephone: (415) 267-4000

Facsimile: (415) 267-4198

Attomeys for Defendant
METALCLAD INSULATION CORPORATION

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 13 2010

Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOYCE JUELCH and Case No. CGC-09-275212

NORMAN JUELCH, SR.,

DECLARATION OF ALECIA E. COTTON IN
Support OF DEFENDANT’S MOTION IN
LIMINE TO EXCLUDE REFERENCE TO

Plaintiffs, MEDICAL RECORDS REVIEWED BY

PLAINTIFFS’ EXPERT DR. RICHARD LUROS

v. AFTER THE CONCLUSION OF His DEPOSITION

AND Hits MARCH 9, 2010 EXPERT REPORT

ASBESTOS DEFENDANTS, (BP), e¢ al, BASED THEREON[MIL 39]

TRIAL DaTe: ApRIL 5, 2010
Depr.: 604
Defendants. JUDGE: HONORABLE MARLA J, MILLER

-1-

DECLARATION OF ALECIA E. COTTON IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE TO EXCLUDE REFERENCE TO MEDICAL
RECORDS REVIEWED BY PLAINTIFFS’ EXPERT DR. RICHARD LUROS AFTER THE CONCLUSION OF HIS DEPOSITION AND HIS MARCH 9.

SF:27420011.1

2010 EXPERT REPORT BASED THEREON(MIL28

MeKenna Lonc &
ALORIDGE LLP
ATTORNEYS AT LAW
San Francisco.

I, ALEcIA E. CoTTON, declare as follows:

1 1am employed with the law firm of McKenna Long & Aldridge LLP, counsel of
tecord for Defendant Metalclad Insulation Corporation (“Metalclad” or “Defendant”) in the
above-captioned action. I am a member in good standing of the State Bar of California. I have
personal knowledge of the facts set forth in this declaration and, if called as a witness, could and
would competently testify to such facts under oath.

2. Attached hereto as Exhibit “A” is a true and correct copy of the deposition
transcript of Plaintiffs’ expert witness Dr. Richard Luros taken in the present action, dated March
8, 2010.

3. Attached hereto as Exhibit “B” is a true and correct copy of the March 9, 2010
expert report prepared by Dr. Luros in which he relied upon the Mercy Medical Center medical
records which were not reviewed before his March 8, 2010 deposition.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct,

Executed on this "day of April 2010, at San Francisco, California.

Li la g bb.

ALECIA E. COTTON ~

-2-

DECLARATION OF ALECIA E COTTON IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE 10 EXCLUDE REFERENCE TO MEDICAL
RECORDS REVIEWED BY PLAINTIFFS’ EXPERT DR. RICHARD LUROS AFTER THE CONCLUSION OF HIS DEPOSITION AND HIS MARCH 9.
2010 EXPERT REPORT BASED THEREON([MI.

‘SF27420011.1ExhibitIN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA ;
IN AND FOR THE COUNTY OF SAN FRANCISCO

ew NH

JOYCE JUELCH and
NORMAN JUELCH, SR.,

Plaintiffs,

vs. NO. 275212

ALLIS CHALMERS, et al.,

Defendants.

13 TELEPHONIC DEPOSITION OF RICHARD LUROS, M.D.

15 Taken before MICKELE R. ZRONEK
16 CSR No, 12242
17 March 8, 2010

o er —

Aiken Welch Court Reporters Richard Luros, MD 3/8/2010
Electronically signed by mickele zronek (001-362-696-2238) 1a9b396e-fa6c~4531-ad02-c46437 1a69C0Page 2 or . ne Page 4
1 INDEX 1 the Defendant Redwood Plumbing Company, Inc.: E
2 John Burke
2 PAGE (via phone}
3 EXAMINATION BY MR. BURKE 5, 32, 51 | ? 3000 Pon Steet Sue 1425
4 EXAMINATION BY MS. HOLT 27 4 , California 94608. :
5 EXAMINATION BY MR. TOPOLSKY 23 BT ar omodated insulation:
6 EXAMINATION BY MR. HUFF 33, 5G y we phone) Geet, Hite ‘
7 EXAMINATION BY MR. HOYE 36 Rehhot iP Sores
3 EXAMINATION BY MR. GOLDSTEIN 54 8 Se aoe Seek, Gute 1910
9
10 EXHIBITS wo For the Defendant Sequoia Ventures, Inc.:
Mu DEFENDANTS’ PAGE 1 mers Toposky
it
12 1 Letter Dated 9-21-2009 from Brayton So ane ernington LP
to Dr, Luros 10 R “Two Embarcadero Center, Suite 1800
13 B San Francisco, California $4111.
2 Dr. Luros' Report Dated 10-2-2009 10 “ For the Defendant Metalclad Insulation Corporation:
14 Deniet Hoye
15 15 {via phone)
Mokena, Long & Aldridge
16 16 101 Catfornia Street, 41st Floor
17 v San Francisco, California $4111
18 ‘ For the Defendant PG&E:
i
19 Lynn Hollenbeck
20 19 (via phone)
Law Offices of Lucinda Storm
21 20 610A 3rd Street
22 n ‘San Francisco, California 94107-1218
23 2
24 3
25 25
Page 3 Page 5
1 TELEPHONIC DEPOSITION OF RICHARD LUROS, M.D. 1 RICHARD LUROS, M.D.,
2 2 sworn as a witness,
3 BE IT REMEMBERED, that pursuant to Notice, and - :
4 onthe 8th day of March 2010, commencing at the hour of | 3 testified as follows: E
5 8:02 a.m., at 12171 Chaucer Road, Los Alamitos, 4 MR. BURKE: And, John, can we have a E
6 California, before me, MICKELE R. ZRONEK, a Certified 5 stipulation that the doctor can be sworn in remotely E
7 Shorthand Reporter, telephonically appeared RICHARD j i i i :
8 LUROS, MD., a a witness in said action, and 6 since the court reporter is at a different location than
9 being by me first duly sworn, was thereupon examined as 7 the witness?
10 a witness in said cause. 8 MR. GOLDSTEIN: Plaintiffs stipulate.
li g MR. BURKE: Great. Thank you. Great.
appearances: 7O7 10 EXAMINATION BY MR. BURKE: |
14 For the Plaintiffs: il Q. Doctor, my name is John Burke, I represent one
15 John Goldstein 12 of the defendants in the case. I have a report of yours
{via phone) 13 dated October 2, 2009. It's -- my copy is 27 pages [
16 soo Rush Lancing Road 14 long. De you have a copy of that report in -- with you?
i 15 A, Ido. ce
v7 Novato, California 94948-6169
18 For the Defendant Kaiser Gypsum: 16 Q. Okay. Have you -- have you prepared any other E
19 Michael Huff 7 reports in this case, the Joyce Juelch case, other than
20 tes, Beebe, Bsgaor & Sith 18 that October 2 report? I
One Sansome Street, Suite 1400 19 A. No, sir. '
2a San Francisco, California 94104 20 Q. Okay. Great. You've been deposed on numerous
22 For the Defendant Oscar E. Erickson: 2i occasions, correct, Doctor?
3 eee, 2 A. Yes, sir.
24 Walsworth, Franklin, Bevins & McCall, LLP 23 Q And is it okay with you if I dispense with the
601 Montgomery Street, Sth Floor 24 typical, normal admonitions?
25 San Francisco, California 94111-2534 25. A. Itis. I
2 (Pages 2 to 5}

Aiken Welch Court Reporters
Electronically signed by mickaie zronek (001-362-696-2338)

Richard Luros, MD 3/8/2010
1a9b396e-fa6c-4531-ad02-046437 14690Page 6

1 Q. Great. Thank you, Doctor. Piease tell me how 1 You now have some records from Mercy Medical Center
2 it was you were contacted in this case. 2 regarding the patient. But you did not review those
3 A. I received a letter in the fall of 2009 asking 3 before preparing the report. Is that a fair summary?
4 me to review the records on Ms. Juelch and prepare a 4 A. Yes, except for the fact that I don't recalt b
5 report with regard to her medical condition or 5 the chronology of events as to Cottonwood and P.A.C.E. §
6 conditions, which letter also informed me that a claim 6 as to whether I reviewed those before I repaired — E
7 for workers’ compensation benefits had been filed on 7 Prepared the report or in conjunction with its
8 behalf of Ms. Jueich by Brayton, Purcell, 8 preparation. But I suppose for all practical purposesI ff
9 Q. Was this October 2 report intended to comply g would agree with the time frame in which you posed your
10 with the requirements under the workers‘ compensation | 10 question.
li jaw — i Q. In other words, you had the Cottonwood and the
12 A. Yes, 2 P.A.C.E. records available to you at the time you
13 Q. - as 4 qualified medical examiner report? B prepared your report, correct?
14 A. Correct, 14 A. Yes.
15 Q. Okay. Have you examined Ms. Jueich at any time | 15 Q. Okay. Good. Any cther medical records on the
16 yourself physicaily? 16 patient other than the Cottonwood and the P.A.C.E.
17 A. No, sir. 17 records that you had access to at the time you prepared ff
18 Q. Have you requested to do so? 18 your report? E
19 A. No. 19 A. Other than those pertaining to Drs. Powers and
20 Q. Tell me what you reviewed before you did the 20 Salyer,
21 October 2 report. 24 Q. Yes, the reports of Drs. Powers and Salyer,
22 A. It is as defined in my report, namely, the -- 22 yes. Okay. Anything else?
23 the data which begin on page 2, which include the 23 A. I don't believe so.
24 application for adjudication of claim, which is the 24 Q. Okay. Good. Did you speak over the telephone
25 claim for workers' compensation benefits, along with 25 with the witness -- or with the witness — with the
Page 7 Page 9
1 Social Security Administration records, standard 1 patient?
2 asbestos case interrogatory responses, And included 2 A. No, sir.
3 within the latter is a description of the type of work 3 Q. Okay. Did you review any deposition
4 she performed for various employers during her career, 4 transcripts of Ms. Juelch or anyone else in this case?
$ I then reviewed the report of Dr. Daniel Powers as to 5 A. I don't think so.
6 the high resolution CT scan performed on August 5, 2009,} 6 Q. Okay. All right. How much time did you take
7 as well as the report of a pathologist, Dr. William 7 in reviewing the materials that you did have access to .
8 Salyer, S-A-L-Y-E-R, and some additional medical records | 8 before you prepared your report? How much time was the &
9 conceming hospitalizations at facilities in Redding, 1 9 review process, if you know?
10 believe, and records of Cottonwood Medical Group and 10 A. On page 27 of my report, it indicates 11 hours.
11 reports from various -~ of, rather, various X ray iL Q. Okay. And would that be for the ~ including
12 studies. 12 the preparation of the report? E
13 Q. On the medical records, you have records from a 13 A. No. That indicates seven hours. E
14 facility in Redding, did you say? 4 Q. Oh, I see. You actually break it down. What EP
45 A. Actually, they probably reflect those contained 15 medical research or review did you do that took 3.5 E
16 within Cottonwood Medical Group and the P.A.C.E. ~ 16 hours? |
17 that’s P-A-C-E with periods in between the letters — vy A. That is also included within the report as to
18 Cancer Center rather than records of Mercy Medical 18 articles which were cited in the report which -- E
19 Center in Redding. Those -- correction, although those 19 Q. I see -- I see the various literature that is
20 were subsequently sent to me, although I really haven't | 20 cited. I'm aware of that. My question, I guess, is: I
21 had a chance to review those. 21 That's what took the 3.5 hours, the review and E
22 Q. Okay, So, just -- just to summarize it, in 22 consideration of those -- that literature cited in the
23 terms of the medical records, you did review records 23 report?
24 from cot -- the Cottonwood Medical Group and the 24 A. Yes. :
25 P.A.C.E. Cancer Center before you prepared your report. | 25 Q. Okay. Did you review any literature for the E

"3 (Pages 6 to 9)

Aiken Welch Court Reporters Richard Luros, MD 3/8/2010

Electronically signed by mickele zronek (001-362-6986-2338)

1a9b396¢-fa6c-4531-ad02-046437 1 a69cOPage 10 Page 12 E
1 purposes of this case that you did not cite in the 1 back up. Have you been asked by anyone to serve as an E
2 report? 2 expert witness in this case? E
3 A. I don't specifically recall. 3 A. [have not been directly asked to do so by
4 Q. Okay. All right. Let's go to your report. By 4 anyone.
5 the way, have you spoken to counsel for Ms. Juelch at} 5 Q. Do you have an understanding that you will be
6 any time before this morning? 6 asked to serve as an expert witness in this case?
7 A. No, sir. 7 A. Not specifically with regard to this case,
8 Q. Okay. And it was Ms. DeCarlo over at the 8 What often happens is that at the time of deposition it
9 Brayton firm that you communicated with in writing 3 appears by inference that I will be. But in terms of
10 regarding this case? 10 whether I've been specifically asked to do so with
i A. Yes. il regard to this case, I have not.
12 Q. Okay. 12 Q. In other words, you as of today, anyway, have E
13 A. But I have not spoken directly with her or 13 not been asked to prepare expert opinions with regard to F
4 anybody -- 14 this case. Rather, you've been asked to review the file
15 Q. Got it. And the letter that you received in 15 as a physician and make a determination on your own as E
16 the fall of 2009 was from her? 16 to what medica! conditions Ms. Juelch may or may not
7 A. Yes, sir. 17 have. Correct?
18 Q. Okay. Great. Do you have a copy of that 18 A. Yes.
19 letter there with you? 19 Q. Okay. All right. You recite her employment
20 A. Ido. 20 history starting on page 2. Did you take that from the
21 Q. Ckay. We're going to mark that letter, the 2L Social Security records or where did you get that?
22 fall of 2009 letter, from Ms. DeCarlo to yourself as 22 A. From the binder provided to me by Brayton,
23 Exhibit 1 to the deposition. And then we'll mark your | 23 Purcell. And it would, in fact, be from the Social
24 report, the October 2, 2009, 27-page report, on 24 Security records or, rather, the standard asbestos case
25 Ms. Juelch as Exhibit 2 to the deposition. And we'll 25 interrogatory responses. I guess my answer would be
Page 11 Page 13
1 take care of the housekeeping of that off the record i both.
2 later. 2 Q Okay. And when you say “the binder," the
3 ‘On the very first page of your report, in the 3 binder is the materials that you've already described
4 third paragraph, you state, according to your fetter of 4 reviewing, correct?
5 September 21, you have filed a claim for workers’ 5 A. Yes.
6 compensation benefits alleging cumulative exposure to 6 Q. Okay. On page 3, towards the bottom, you note
? asbestos and other toxic substances during the course of | 7 that Ms. Juelch smoked one and a half -- or strike that,
8 her employment -- and it goes on. What other toxic a one half to one pack per day of cigarettes from 1965
9 substances are you aware of, Doctor, that Ms. Jueich was} 9 through the present. The present would have been
10 exposed to during her employment years? 10 October 2, 2009. First question, where did you get that
at A. I would imagine that she was exposed to manmade] 11 information?
12 vitreous fibers as well as secondhand smoke as wellas | 12 A. From the same binder which we just discussed.
13 the fact that Ms. Jueich herself smoked, which I 13 Q. Do you know in particular where in that binder I
14 referenced in my report. 14 you got that, whether it was from the medical records or
15 Q. And what -- what are manmade vitreous fibers? 15 the interrogatory responses or a combination? Can you
16 Can you give us an example of one? 16 Pinpoint it at all?
7 A. Fiberglass. 17 A. Probably both. But, certainly, within the
18 Q. I see. Any other toxic substances that you 18 standard asbestos case interrogatories --
19 understood Ms. Jueich was alleging exposure to other 19 interrogatories, there's usually a question and response
20 than asbestos, manmade vitreous fibers and secondhand | 20 to the issue of smoking history. E
21° smoke? 21 Q. You're exactly right, there usually is. Bear i
22 A, Apart from asbestos? 22 with me for one second. I'm going to pull that up. So
23 Q. Yes. 23 it was your understanding at the time you prepared the
24 A. I'm not aware of any. 24 report that the patient was still smoking?
25 Q. Do you have any opinions in this case -- let me 25 A. Yes.

Aiken Weich Court Reporters

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Richard Luros, MD 3/8/2010

1aGb396e-fabc-4531-ad02-046437 1a69C0Page 14

1 Q. Okay. I'm pulling up on my computer, here, the 1 asbestosis with central lobular greater than paraseptal
2 interrog answers. And I'll be able to get the answer to 2 emphysema. First of all, do you understand that it was
3 the question in short order. While I'm doing that, the 3 Dr. Powers' diagnosis of asbestosis or you diagnosing
4 next sentence says, her husband -- husband also smoked | 4 asbestosis from your review of either the films or his
5 one pack per day, having done so from 1981 through the} 5 notes?
6 present. Her husband at the time, you understood to be | 6 A. The question was somewhat complex, but I think
7 Norman Juelch? 7 I followed it. I was just memorializing what Dr. Powers
8 A. Yes. 8 had said in terms of his conclusions as to his reading
9 Q. And it was your understanding at the time you 9 of that film or set of films.
10 prepared this report that Mr, Juelch was still smoking 10 Q. Got it. Are you yourself diagnosing the
i as of October 19 -- or 2009? it Patient with asbestosis?
12 A. Yes. 12 A. Yes.
13 Q. Okay. Very good. Do you know if the patient 13 Q. And that’s based on what, Doctor?
14 had attempted to stop smoking -- or strike that. Do you | 14 A. Not only Br. Powers' interpretation or report
is know if the patient had stopped smoking at any time is but also based on medical probability in terms of the
16 during the period from 1965 through October of 2009? 16 exposures which Ms. Juelch had over the years of her
7 A. I don't. 17 employment as discussed in the responses to asbestos
18 Q. Okay. 18 case interrogatories and medical probability based on
19 A. It’s not at all unusual for that to be the 19 her occupation and the duration of her employment in
20 case, but I have no independent recollection as to 20 that capacity and the fact that many of those years were |;
2i whether or not that is the case or was the case with 21 spent with -- or in unprotected exposure situations. :
22 Ms. Jueich. 22 Q. What was it about Dr. Powers’ report, if you
23 Q. And I've confirmed by reviewing the 23 can recall, that led him to diagnose the patient with
24 interrogatory responses to set one that, in fact, as of 24 asbestosis? i
25 June of '09 it did indicate that the patient was still 25 A. I don't specifically recall.
F
Page 15 Page 17
1 smoking. It said to the present. So I see where you 1 Q. Okay. Would you need -- well, let me back up.
2 probably got that. Do you have any information, Doctor | 2 Is there anything else in your opinion -- let me -- let
3 -- well, let me back up. Did you speak to Mr. Juelch, 3 me back up even further. Do you have -- are you
4 Norman Juelch? 4 certified in any specialty, Doctor? [
5 A. No. For the sake of housekeeping, I haven't 5 A. Yes.
6 spoken to anybody with regard to this case. 6 Q. What is your specialty? :
7 Q. Okay. That's a lot easier. You note that 7 A. Internal medicine. E
8 Ms. Juelch -- on page 9, you note that she retired in 8 Q. Okay. As a certified internist, do you -- do
9 January of two -- of 1992 due to a non asbestos related [| 9 you have an understanding of the criteria that is
10 disability, Do you know what that disability was? 10 required for a diagnosis of asbestosis?
a A. I don't. it A. Yes.
42 Q. Right below that, there's a not -- there's a 12 Q. What do you need to have in order to reach a
13 line that says it was then said she stopped smoking in 13 diagnosis? Is it simply a radiologist’s report where
14 2008 as a result of her current throat cancer, That's 14 the radiologist diagnoses asbestosis and a stated
15 in the middle of two -- page 9. I'm trying to go back 15 history of exposure to asbestos? Is that enough in your
16 up and figure out what you're reviewing there. Can you | 16 opinion as a certified internist to reach a diagnosis of —
7 > can you figure out where you got that? vy asbestosis on your own? E
18 A. No. 18 A. No. It largely reflects a history of asbestos E
19 Q. Okay. 19 exposure that is reasonable, assuming that the patient
20 A. My supposition is that it came from the 20 is credible, a lack of alternative diagnosis, a proper
21 asbestos case interrogatory responses. 21 duration of exposure, certain X ray or CT, particularly ;
22 Q. Okay. You do on that same page below make note] 22 high resolution CT, findings. I may have said a lack of |
23 of Dr. Powers’ report of a CT -- HRCT scan performed on | 23 alternative explanation for the findings in question.
24 August 5 of 2009. And you write, this test revealed 24 Those are the -- the major factors required to make the [
25 imaging diagnosis -- HRCT imaging diagnosis of 25 diagnosis in my opinion. E

Aiken Welch Court Reporters

Electronically signed by mickele zronek (001-362-696-2338)

Te So

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Richard Luros, MD 3/8/2010

1a9b396e-fa6c-4531-ad02-¢464371a69C0Page 18

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1 Q. When you say lack of alternatives for the -- is 1 Q. You referenced the last page, I guess, or next
2 it -- what did you say, lack of alternatives for the 2 to last page of your report where you have a list of E
3 symptoms reported or -- what is that again? 1 want to 3 diagnoses when I asked that question or the -- what page
4 make sure I say it correctly. 4 was it on, Doctor? Do we have your list of diagnoses? B
5 A. Alack of alternative explanations for the 5 A. Yes. I just --
6 clinical, radiographic and pulmonary function test 6 MR. GOLDSTEIN: It's page 15, counsel.
7 findings -- 7 THE WITNESS: Page 15.
8 Q. Okay. 8 BY MR, BURKE:
9 A, -- along with typical symptomatology, for g Q. Thank you so much. Let me take a look at that.
10 example, shortness of breath. One may need -- find, 10 So the first diagnosis is non small cell lung cancer
WU rather, rales at the lung bases that do not clear with i with metastasis. Then the second is chemotherapy and
12 coughing. There may be other physical findings that can | 12 radiation therapy for one. You call this a diagnostic
13 be seen. 3 impression. I'm a little confused about number two. Is
14 Q. Were there any rales in this case found with 14 there some physical effect on the patient that you're E
15 the patient? 15 diagnosing as a result of the chemotherapy and radiation
16 A, I don't specifically recall seeing medical 16 therapy?
17 records one way or the other in that regard or speaking 7 A. She did, I believe, have -- and this is based
18 to that topic. 18 on subsequent records. At one point, she had radiation
19 Q. Do you have any alternative explanation for the 19 esophagitis, I believe, and needed a feeding tube.
20 clinical findings of shortness of breath in this case, 20 Q. Okay.
21 Doctor? 21 A. Or that's often placed in anticipation of
22 A. Yes. Certainly, her smoking and apparent 22 difficulty swallowing.
23 emphysema would be contributory to shortness of breath, | 23 Q. Okay. At one point in this case -- and I
24 as would a history of heart trouble. They certainly 24 believe even in your report -- there's some notation of
25 would be contributory. One can't necessarily 25 throat cancer. Did you find anywhere in the notes
Page 19 Page 21 &
1 compartmentalize in terms of which of these caused what 1 yourself that the patient has been diagnosed at any E
2 percent and what -- 2 point with throat cancer?
3 Q. [understand what you're saying, Doctor. I'm 3 A. Not to this point, ne.
4 just trying to go through, I think, what you described 4 Q. Okay. I'm just looking through. I thought I
5 as what you need to see in order to reach a diagnosis of 5 saw that somewhere in the notes. Oh, it is -- yeah, it
6 asbestosis. And I believe one of the points you made 6 is -- it is in the middle of page 9 of your report where
? was a lack of alternative explanations for the clinical 7 it says, quote, it was then said she stopped smoking in
8 findings. In the -- 8 2008 as a result of current throat cancer, close quote.
9 A. By the way, sometimes you can find histologic 9 Any idea where that came from, Doctor? |
10 evidence of asbestos, although that's often an issue of 10 A. I think we discussed that earlier. I have no.
it a sampling of fortune or lack of finding asbestos il independent recollection. But I imagine that that
2 particles or bodies. 12 appeared in the asbestos case interrogatory responses. :
13 Q. Was that the case here? Do you know? 13 Q. Okay. Are you aware of any pulmonary function
14 A. On her biopsy, there were no asbestos bodies 14 test that the patient underwent?
15 found. 15 A. No. I do know that in a cursory review of the
16 Q. Okay. Did you review, by chance, any reports 16 records of Mercy Medical Center she was on oxygen at |,
17 from any of the defense doctors, Dr. Meyers or anyone 17 least during her hospitalization -- or hospitalizations. :
18 else? 18 Q. Would you as a certified internist want to have
19 A. No, sir. 19 PFT, pulmonary function test, results in order to E
20 Q. You did diagnose the patient with emphysema? 20 confirm the diagnosis of -- of asbestosis?
21 A. I don't see that in my list of diagnoses. 21 A. No.
22 Q. Okay. 22 Q. Why not?
23 A. 1 did note smoking history. But, probably, 23 A. Well, it's largely clinical. And I don't know f
24 emphysema would be a reasonable diagnosis in conjunction | 24 that -- and this is just an impression I have, that
25 with that diagnosis, 25 Ms. Juelch would not be in any shape to effectively
i
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Aiken Welch Court Reporters Richard Luros,MD 3/8/2010

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1 perform such testing. But apart from that, I believe 1 Q. Okay. Do you know what you did with the
2 ‘that her clinical history and X ray findings, assuming 2 binder?
3 that Dr. Powers' report is accurate, and her entire 3 A. Again, I've discarded it.
4 Clinical course with her history of exposure certainly 4 Q. Okay. Is that your typical practice, once you
5 supports the probability that she has asbestosis. 5 do a report such as you did on October 2 to discard the
& Q. When you say “probability,” I'm not 6 underlying documents?
7 understanding what you mean. Are you diagnosing her | 7 A. Yes.
8 with asbestosis or are you saying that there's some 8 Q. Okay. Would you agree with me that
9 probability that she has it? 3 Ms. Jueich's clinical findings of shortness of breath é
10 A. No, I believe she has it. 10 could be explained by emphysema and her smoking history? §
i Q. Okay. Are you aware of any pathological tests i A. Is the question -- or hypothetical, if you
R taken by anyone in this case where there were any 12 will, excluding any exposure to asbestos? If so, the
13 asbestos bodies found in any samples? B answer would be yes, I think it’s probably a
14 A. No. 14 combination of her asbestosis and smoking and the fact
15 Q. Are you aware of any actual radiological 15 that she has lung cancer.
16 results where the radiologist actually found some 16 Q. Let me rephrase it a little bit. You would FP
17 markers of asbestos exposure that you can actually 7 agree that people who have emphysema oftentimes :
18 describe to us? 18 experience shortness of breath, correct? E
19 A. Other than the report of Dr. Powers based on 19 A. Yes. E
20 his interpretation of the high resolution CT scan, no. 20 Q. You would agree with me that people who have |
21 Q. Okay. And with regard to Dr. Powers, can you 21 lung cancer oftentimes have shortness of breath, E
22 describe for us the markers of asbestos exposure that he | 22 correct? EP
23 found? 23 A. Yes, E
24 A. No. Again, I think you asked me that earlier. 24 Q. And you would agree with me that people who E
25 I don't specifically have -- rather, I don't have his 25 have had heart attacks oftentimes experience shortness
Page 23 Page 25
1 report in front of me. So I really can't answer that 1 of breath, correct? E
2 question. 2 A. Yes. E
3 Q. Did you ever have his report in front of you? 3 Q,. Okay. Bear with me, Doctor. I'm almost done. E
4 A. I believe I did, He usually describes those 4 Til let some of my learned colleagues take over. b
5 findings. But I don't reference them in my report as to 5 Looking at the middle of page 16 of your report, you --
6 what he actually saw. 6 you write, the patient's lung cancer is attributable to E
7 Q. And do you know what happened to the report? 7 two factors, namely, her asbestosis documented on CTF
8 A. I don't. I assume that it's still in the 8 scanning of the lungs as interpreted by Dr. Powers as E
9 possession of Brayton, Purcell, 8 well as her smoking history. I -- I don't want to -- gE
10 Q. You sent it back to them? 10 well, let me just ask you. Do you believe that her lung =f:
11 A. No. But I~ it's -- it cancer is actually attributable to asbestosis?
12 Q. I'm asking what happened to the report. I'm 12 A. And smoking.
13 sorry. I misspoke. Do you know what happened to your | 13 Q. Okay. You believe asbestosis can cause lung
14 copy of the report that you once had? 14 cancer?
15 A. I don't. i A. Yes.
16 Q. Was it sent to you in the binder that the 16 Q. Okay. And I think you said earlier you could
17 Brayton office sent to you? v7 hot break down a percentage of causation between the
18 A. Yes. 18 two. Correct?
19 Q. Isit -- are there any other documents that you | 19 A. Correct. :
20 reviewed in this case that you no longer have? 20 Q. Allright. Doctor, I'm going to -- let me ask |
21 A. I didn't keep a copy of the binder. And so the 21 you one other question, here. Have you done any work
22 answer is no. 22 with regard to any of the sources of asbestos that F
23 Q. I see what you're saying. Okay. So all -- you 23 Ms. Jueich may have had during her life? In other B
24 don't have any of the underlying documents? 24 words, are you going to testify -- or have you done any
25 A. Correct. 25 research into determining who made the asbestos or who}

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Page 28 ff

1 put it in her breathing zone during her life? 1 Jobns Manville or whether it's Dow Chemical or any other §
2 A, I've not been specifically asked to address 2 firm for that matter. I don't know whether that answers
3 that question or specifically to appear as an expert 3 your question. Yet, I do know that people who were E
4 witness. But to answer your question, there were a 4 exposed to products made by Johns Manville were -- over F
5 number of manufacturers mentioned in the asbestos case 5 @ period of time were exposed to asbestos. I don't know f
6 interrogatory responses which would be reasonably named | 6 whether that answers your question or not. ButI have &
7 as having produced products containing asbestos, 7 no --
8 assuming that the asbestos case interrogatory responses & Q. Well --
9 and standard ~ or, rather, Social Security records are S$ A. — knowledge apart from my own familiarity with

10 accurate, 10 certain firms as to that question. So, if you were to E
11 Q. Other than what you read in those records, do it ask me, for example, am I familiar with ABC company, my.
12 you have any information about the sources of 12 answer would be no. E
13 Ms. Juelch's asbestos exposure? 13 Q. Okay. That is not my question, actually. My

14 A. No, sir. 14 question to you is: Would you expect to be an expert

15 Q. And do you know anything about a company called 15 witness as to the medical condition of the plaintiff or

16 Redwoed Plumbing Company, Inc.? 16 as to some other aspect of the case?

7 A. Idon't. 17 A. If asked to be an expert witness -- and I have

18 Q. Okay. T'll pass, Doctor. Thank you for your 18 not yet been asked --

19 time. Oh, by the way, while we're on the record, I 19 Q. Understood.

20 understand it's $450 an hour. You charge a two-hour 20 A. -- it would be as a witness as to her medical

21 minimum. My office, 1 believe, has already cut a check 21 condition as opposed to any specific entity or firm.

22 for you for 900 dollars. if they haven't, I will make 22 Q. And do you have any reason to believe that if

23 ‘sure that it's done immediately. And the counsel on the 23 you did research that you would have actual or personal f

24 phone, you all have another hour and 40 minutes’ worth 24 knowledge as to whether the plaintiff was exposed to any

25 of time, it looks like, to use for free. So have at it. 25 products or materials manufactured by any specific E

Page 27 Page 29 |

1 Thank you, Doctor. 1 company? ES
2 A. Thank you, 2 MR. GOLDSTEIN: Well, lacks foundation, calls ,
3 EXAMINATION BY MS. HOLT: 3 for speculation at this point.
4 Q. Yes, sir. My name is Jennifer Holt. Are you 4 BY MS. HOLT: :
5 familiar with a company named Consolidated Insulation? 5 Q. Go ahead, Doctor.
6 A. No. 6 A. I don't know whether I can answer that i
7 Q. And other than what you may have read in the 7 question, I don't know what research I would do as to
8 records, including the Social Security records, would 8 any given company. It's a matter of, perhaps, .
9 you have any information about whether the plaintiff was 9 predicting the future. And I really don't know that =f

10 exposed to ashestos by the activities of Consolidated 10 can give you an accurate answer to that question.

ul Insulation? il Q. Okay. Let me ask you this way. Concerning the §

12 A. No. And, again, I may be, to borrow a phrase, 12 plaintiff's Social Security records, did you ever visit

13 presuming facts not in evidence. The same response 13 the plaintiff at any of the job sites where she worked?

14 would apply to ail companies or manufacturers mentioned | 14 A. No, I've had no contact whatsoever with the

15 in the binder sent to me by Brayton, Purcell. 15 plaintiff or her family.

16 Q. Okay. And so, even if you were asked to be an 16 Q. And did you observe any of the products --

7 expert witness, you would have no personal knowledge as_ | 17 sorry to interrupt you. Did you observe any of the

18 to any of that, right? 18 products, if any, that the plaintiff worked with or

19 A. it’s a samewhat difficult question. For 19 around at any time during her working life?

20 example, I'm just going to name a firm, Johns Manville, 20 A. No, My only contact or exposure to this case

21 for example. And I don't know as I sit here -- and I 21 was the binder and, subsequently, the medical records

22 haven't gone through my report -- whether Ms. Juelch was | 22 forwarded to me by Brayton, Purcell.

23 exposed to any products made by that firm or not. I'm 23 Q. Okay. Thank you, sir.

24 unclear as to personal knowledge. In this case or my 24 EXAMINATION BY MR. TOPOLSKY:

25 example, I haven't done any research with regard to 25 Q. Hello, Doctor. This is Tony Topolsky. Can you

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a hear me Okay? 1 questions.
2 A. Tcan, Thank you. 2 A. Thank you.
3 Q. Okay, You were referred this case as a 3 EXAMINATION BY MR. BURKE:
4 qualified medical examiner. Am I right? 4 Q. Doctor, John Burke, It just dawned on me if E
5 A. You are, 5 you don't have the file anymore you probably don't have B
6 Q. That was in the workers' compensation system — { 6 the letter that was sent to you by the Brayton firm. Is
7 A. Correct. 7 that correct?
8 Q. - correct? And so is it -- is it -- I've been 8 A. No, it’s not.
9 listening to the discussion and the questions. Is it my 9 Q. Oh, you do have that letter?
10 -- am I correct that at this point all you're doing is 10 A, Ido.
a giving opinions -- your opinions about the medical i Q. Okay. Great. And you do have your report?
12 condition of the plaintiff? 412 A. Ido.
13 A. Correct. 13 Q. Okay. Can I ask you to provide that when we're
14 . Okay. And I think I heard this correctly. On 14 off the record to the court reporter maybe by e-mail so
15 page 25 of your report, there's -- there's a reference 15 that she can attach it as Exhibits 1 and 2 to the
16 that you personally performed the history and physical | 16 deposition?
17 examination. wv? A. I can't do it by e-mail, But perhaps Brayton,
18 A. That's -- yeah, that is an error. That's a 18 Purcell might be able to more easily do so. But if not,
19 standard boilerplate which I didn't see in reviewing it. | 19 I'd be --
20 And it should have been taken out because I did not do } 20 Q. Or maybe John -- John, maybe you can do it.
21 so. It was simply a record review. And sol apologize | 21 MR. GOLDSTEIN: Right. I was just -- I was
22 for that. But that is an error. 22 trying to say I'll be more than happy to provide — you
23 Q. Okay. And there was no electrocardiogram, 23 want to mark Exhibit 1 the letter?
24 either; is that right? 24 MR. BURKE: Yeah. We did one as the letter and
25 A. Correct. There was no physical contact or 25 two as the report.
Page 31 Page 33
1 verbal contact with anyone pertaining to this case, 1 MR. GOLDSTEIN: Okay. Sure, we'll take care of
2 whether Ms. Jueich, her family, Brayton, Purcell, My 2 that. At the conclusion of the deposition, we'll e-mail
3 contact with this case was simply preparing a report 3 it to the court reporter.
4 based upon a review of medical records as provided to me} 4 MR. BURKE: Thank you, John. Thank you so E
5 by Brayton, Purcell. 5 much. Anybody else with questions? E
6 Q. Okay. And those are all the reports and — 6 MR. HUFF: Yeah. Doctor, this is Michael -- |
7? well, let me back up. When -- when you saw the material} 7 UNIDENTIFIED SPEAKER: Good morning, Doctor.
8 from Dr. Powers, did you just only see a report? 8 MR. HUFF: Go ahead. :
9 A. Correct. 9 MR. BURKE: Somebody go. :
10 Q. Okay. So you never actually yourself examined 10 EXAMINATION BY MR. HUFF: [
11 any CT or -- films. Am I right? it Q. Okay. Doctor, this is Michael Huff. This case
12 A. You are. 12 is set for trial on April Sth of this year. Are you
13 Q. And you haven't actually seen any of the 13 available to testify at trial following — following
14 diagnostic tests that Dr. Powers saw? 14 that trial date?
15 A. Correct. 15 A. I don't specifically have my schedule in front
16 Q. Okay. So it’s only his report that - that you 16 of me. I can perhaps communicate with plaintiffs’
17 read? 17 counsel in that regard, Mr. Goldstein.
18 A. Correct. 18 Q. Other -- other than this QME that you've done,
19 Q. Okay. And how -- I know that the -- you no 19 have you been asked by the Brayton firm to perform any |:
20 longer have the report, But can you give us an idea of 20 other activities in preparation for trial?
21 hew long the report is -- was? 21 A. [have not.
22 A, [have no recollection as to its length. It 22 Q. Sir, based upon your review of medical records,
23 typically is several pages. But, again, as to this 23 is it a fair statement that the plaintiff probably
24 particular report, I can't respond. 24 smoked more than a half to one pack of cigarettes per E
25 Q. Okay. Thank you, Doctor. Those are all my 25 day from 1965 -- |
ARNE TIT rere LT TT = TE ee ELIT i

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1 A. 1 don't know that I can answer that question 1 you have the same opinion?
2 without speculating. And in response to your previous 2 A. Edo.
3 question, I did receive an additional binder of records 3 Q. And how about the recurrent transient ischemic
4 from Mercy Medical Center in Redding which I probably 4 attacks, same opinion?
5 will be reviewing. This was forwarded to me along with 5 A. Correct.
6 a letter from a paralegal from Brayton, Purcell, Mr. Jim 6 Q. I don’t have any other questions, Thank you.
7 Murray, dated February 8, 2010. And it just briefly 7 A. You're welcome, sir.
8 indicates that additional materiats are provided for my 8 EXAMINATION BY MR. HOYE:
9 review for deposition and/or trial testimony purposes. 9 Q. Hi, Doctor. It's Dan Hoye. Can you hear me
10 Q. Allright. So you have not reviewed the Mercy 10 okay?
UW medical records that you received on February 8th? i A. Tcan. Thank you.
12 A. That's correct. 12 Q. Thave just a few questions for you. Have you
13 Q. In looking at your report, Doctor, on page 15, 13 testified at trial in an asbestos lawsuit before?
14 you note an asbestos screening program in early January | 14 A. Thave not. I was en route to testify in such
15 1988 where the patient indicated that she smoked for ten} 15 a case, I believe, last year. But the case was settled.
16 to 20 years one to two packs per day. Based upon that, | 16 And I was turned around as I, basically, arrived.
17 is it fair to say, Doctor, that this patient probably v7 Q. And this isn't the first case you've worked on
18 did smoke - or this plaintiff probably did smoke more 18 for the Brayton firm; is that correct?
19 than a half to one pack per day? 19 A. That's correct.
20 A. I think it's fair to say that as of that point 20 Q. And how many times have you been retained in
21 in time she did. Whether that remained the case 21 asbestos litigation by the Brayton firm?
22 thereafter, 1 don't know. 22 MR. GOLDSTEIN: Objection, vague as to E
23 Q. At least on some of her medical records, she 23 “retained.” Are you -- I think under the circumstances
24 indicated a different level of smoking than what she did | 24 you need to be a little bit more specific.
25 in her answers to interrogatories? 25 BY MR. HOYE:
Page 35 Page 37 :
1 A. Correct. 1 Q. Well, let me ask it this way. How many times .
2 Q. In your diagnostic impressions, Doctor, you 2 have you given deposition testimony in a case where E
3 note several medical conditions, including type two 3 you've been retained by the Brayton firm?
4 diabetes, recurrent TIAs, cerebellar stroke and coronary | 4 A. Again, I don't know whether the term retained E
5 artery disease. Would you describe all of these as 5 is synonymous with having been asked to prepare a report
6 potentially life threatening? 6 in conjunction with a claim for workers’ compensation E
7 MR. GOLDSTEIN: Incomplete hypothetical. 7 benefits. But having said that, probably 20 depositions
8 THE WITNESS: It depends upon degree. But if 8 and I don't keep records of this, E
9 the question is if you tock a group of otherwise matched | 9 Q. Okay. And that's 20 depositions over what E
10 individuals and one group had that set of conditions and | 10 period of time?
11 the other group didn't, certainly, you would have more A. The last few years.
12 medical events which were life threatening in the group | 12 Q. And, Doctor, you're -- you're certified in
13 with those factors or conditions than in the group 13 internal medicine, correct?
14 without. But you cannot, however, make any conclusions} 14 A. Yes.
15 -- or draw any conclusions, rather, with regard to any 15 Q. Are you certified in more states than -- or are
16 ‘one individual in either of those two groups. 16 you certified in Califormia?
7 Certainly, those are risk factors for life expectancy. 17 A. Lam. t
18 BY MR. HUFF: 18 Q. Are you certified in any other state? :
19 Q. And do you have any opinions as to whether the 19 A. Well, certification Is nationwide. I don't E
20 cororiary artery disease was caused by exposure to 20 know if that was your question or not. E
21 asbestos? 21 Q. Well, when is the last time you renewed your
22 A. ido have an opinion. 22 certification?
23 Q. And what is that? 23 4A. [was certified at a point where renewal is not
24 A. That there's no correlation. 24 required.
25 Q. And how about the type two diabetes, Doctor, do | 25 Q. And what percentage of your practice now deals

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1 with workers’ comp evaluations? 1 asbestosis?
2 A, I would say about 80 percent. And that's upon 2 A. Yes.
3 referral from attorneys for injured workers, defense 3 Q. Did you see any reports or anything else of a
4 insurance companies or governmental entities or agencies} 4 radiographic nature that indicated Mrs. Juelch had
5 and as an agreed medical evaluator where both sides 5 asbestosis --
6 agree to accept my report as determinative. 6 A. No.
7 Q. Okay. So that's 80 percent. What's the other 7 Q. -- other than what Dr. Powers said?
8 20 percent? 8 A. No, sir. ‘
9 A. Just treating patients, typically in follow-up. 9 Q. And there was no pathological finding by anyone f
10 Q. And when you say ~- 10 of any asbestos bodies, correct?
1 A. Usually just internal medicine conditions, iW A. That's correct, not to this point.
12 which may be hypertension, heart problems, things of 12 Q. So is it your testimony that without any
13 that sort. 3 radiographic or pathological findings of asbestos
14 Q. Okay. So are you currently seeing patients in 14 exposure you -- you could still diagnose her with
15 a clinical practice? 15 asbestosis?
16 A. To a decreasing extent, yes. 16 A. Yes,
17 Q. And in terms of your practice, what type of 7 Q. And that is based on her self-reported work
18 work do you do on a daily basis? 18 history?
19 A. The majority of it involves forensic, if you 19 A. Yes.
20 will, namely, workers’ compensation evaluations, 20 Q. Is it based on anything else?
21 occasional treatment or consultation in a workers’ 21 A. Yes,
22 compensation setting and some follow-up of patients 22 Q. And what else is it based on?
23 referred to me. 23 A. The fact that among other things she lived in
24 Q. Have you ever been certified in pathology? 24 Libby, Montana, for a few years, where there is a large
25 A. No. 25 population -- history of asbestosis. And I believe
Page 39 Page 41 |
1 Q. Have you ever been certified in radiology? 1 there were exposures from her husband, so E
2 A. No. 2 para-occupational exposures, if you will. And I -- I
3 Q. And I know you indicated you reviewed a report 3 strongly believe that - I hope it won't happen for some :
4 from Dr, Powers. Have you ever spoken to Dr. Powers for} 4 time, although I suspect I'm going to be wrong. If :
5 any reason? 5 histologic sectioning of her lungs was to be performed,
6 A. No, sir. 6 there would be typical findings of asbestos bodies
7 Q. How about Dr. Salyer, have you ever spoken to 7 present.
8 him for any reason? 8 Q. Of course, that hasn't been done, correct?
9g A. No. I have not spoken to anyone at any point 9 A. Correct.
10 in the years that Brayton, Purcell has been referring 10 Q. And when you indicate that there may have been
11 cases to any of the physicians who may have issued it some para -- para-occupational exposure, have you
12 reports in conjunction with such cases. 12 reviewed any literature on the issue of E
13 Q. And I know we talked about diagnosing 13 para-occupational exposure?
14 asbestosis. But in terms of the lung cancer diagnosis, 14 A. Ido know that spouses of individuals who have
15 do you follow a set medical criteria before you 15 asbestosis are at increased risk for the condition as
16 determine that a lung cancer is related to asbestos 16 well as its sequelae, including lung cancer.
17 exposure? 17 Q. And do you have any information on her current
18 A. No -- rather, I don't have any set criteria. I 18 husband, Mr. Juelch’s, medical condition today?
19 look at each case individually in terms of circumstances | 19 A. No.
20 of exposure and duration and draw conclusions in terms | 20 Q. Do you know if he was ever diagnosed with
a1 of medical probability as to whether or not asbestos 21 asbestosis?
22 exposure in a given case was of sufficient magnitude and | 22 A. I don't.
23 duration to have been contributory. 23 Q. Do you know if he was ever diagnosed with
24 Q. Absent Dr. Powers’ report, would you be able 24 Pleural plaques?
25 to, at least in your opinion, diagnose Mrs. Juelch with 25 A. No. :

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1 Q. You indicate on page 8 of your report that 1 A, At least as I see it.
2 Mrs. Juelch would shake out his dothes and then wash | 2 Q. Have you ever done any research or read any
3 them. And by “his clothes," I believe you're referring 3 studies or articles that suggest it's appropriate to
4 to her current husband, Mr. Juelch. 4 rely solely on occupational history of exposure to
5 A. Yes. 5 determine whether someone has asbestosis?
6 Q. Again, is this information that was just pulled 6 A. Can T hear the question again, please?
7 from the standard interrogatory responses? 7 Q. Yeah. Have you ever done any research, read
8 A. Yes. 8 any articles or studies that suggest it's appropriate to
9 Q. Do you know if Mr. Jueich was a co-worker of 9 rely solely on occupational history of exposure alone to
10 Mrs. Juelch? 10 diagnose asbestosis?
11 A. I don't. i A. No. And I referenced para-occupational
12 Q, Do you have any information on the source of 12 exposure or exposures as well. So it would be
13 any asbestos fibers that were on Mr, Jueich’s clothing, | 13 inappropriate simply to rely upon one section, if you
14 if any? 14 will, of exposure. Because if one was to do so, one
15 AL No. 15 might have been -- might be exposed for a day as but one
16 Q. Has anyone provided you any information on a 16 example and have para-occupational exposures which were
17 fiber count for exposure that Mrs. Juelch may have 7 much greater. So that, it would be inappropriate to E
18 suffered, like a fiber per year count? 18 rely solely upon occupational or other exposures, for
19 A. No. 19 that matter. Again, as I see it, you have to look at
20 Q. Do you have any information or have you done | 20 the entirety of a case in order to draw conclusions.
21 any research to determine what percent of fibers, 21 Q. You've agreed that Mrs. Jueich has a cigarette
22 asbestos fibers, clear the iungs -- lungs in a given 22 smoking history significant enough to cause emphysema,
23 year? 23 correct?
24 A. No. 24 A. Yes. .
2 Q. Do you have any information on how much you'd | 25 Q. And is it also true that her smoking history
Page 43