Preview
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
!
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 1]
SUPREME COURT OF THE STATE OF NEW YORK
COPy
COUNTY OF SU F FOLK
u
-------- ------------__-------__------X
xxxxxx xxxxxxxx, on behalf o f O
- an under the age of
S , infant 18,
and xxxxxx SCEALLER individitally,
Plaintiffs,
-against- Index No.
026910/12
RONAID J. TADEO, M.D., RICHARD PITCH, M.D.,
SCOTT BERLIN, M.D., SHORE PSYCHIATRIC
CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND,
BERLIN OBGIN ASSOCIATES, JANSSEN
k/n/a ORTHO-MCNEIL-
PHARMACEUTICALS, INC.,
JANSSEN PHARMACEUTICALS, INC., and ZYDUS
PHARMACEUTICALS USA, INC.,
Defendants.
March 12, 2015
12:17 p.m.
170 Old Country Road,
Mineola, New York, 11501
EXAMINATION BEFORE TRIAL of DR. RICHARD PITCH, a
DEFENDANT herein, taken by the PLAINTI F FS/DEFENDANTS
pursuant to order, held at the above place and time,
before Thomas E. Brasacchio, a Court Reporter and
Notary Public for the State of New York.
877-479-2484 USLEGALSUPPORT,INC. www.uslegalsupport.com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 2]
1
A P P E A R A N C E S:
3
4 NAPOLI BERN RIPKA LLP,
SHKOLINIK,
Attorneys for the Plaintiffs,
5 350 Fifth Avenue, Suite 7413,
New York, New York, 10118,
6 By: DANIELLE BRENNER, ESQ.
7
8 MITCHELL J. ANGEL, PLLC,
Attorney for Richard Pitch, M.D.,
9 170 Old Country Road,
Mineola, New York, 11501
10 By: ANGELA ESQ.
FABIANO,
11
12 BOWER LAW, P.C.,
Attorneys for Ronald J. Tadeo, M.D.,
13 And Shore Psychiatric Center,
. 1220 RXR Plaza,
14 Uniondale, New York, 11556,
By: ANINA MONTE, ESQ.
15
16
BARTLETT, MCDONOUGH & MONAGHAN, LP,
17 Attorneys for Scott Berlin, M.D.,
And Berlin OB/GYN Associates,
18 170 old Country Road,
Mineola, New York, 11501,
19 By: DOUGLAS LANGHOLE, ESQ.
20
21 SILLS CUNMIS & GROSS,
Attorneys for Zydus Pharmaceuticals,
22 30 Rockefeller Plaza,
New York, New York, 10112,
23 By: ANDREW W. SCHNARTE , ESQ.
24
25
877-479-2484 USLEGALSUPPORT,INC, www.uslegalsupportcom
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 3]
1
3 PATTERSON, BETENAP, WEBB & TYLER, LLP,
Attorneys for Janssen Pharmaceuticals,
4 1133 Avenue of the Americas,
New York, New York, 10036-6710,
5 By: NATTHEW WEBB, ESQ.
7 KAUFMAN, BOORGEEST & RYAN, LLP,
Attorneys for Pamily Psychology
8 Of Long Island,
1205 Franklin Avenue Sui.te 200 ,
9 Garden City, New York, 15530,
By: EEITE L. EAPLAN, ESQ.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
877-479-2484 USLEGALSUPPORT.INC. www,nslegalsupport.com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 4]
1
S T I P U L A T I O N S
3
4 IT IS HEREBY STIFULATED and AGREED, by and
between the attorneys for the respective parties
5 herein, and in compliance rule 221 of the Uniform
Rules for the Trial Courts:
6
THAT the parties recognize the provision of Rule
7 3115 subdivisions (b), (c) and/or (d). All objections
made at a deposition shall be noted.by the officer
8 before whom the deposition is taken and the answer
shall be given and the deposition shall proceed subject
9 to the objections and to the right of a person to apply
for appropriate relief pursuant to Article 31 of the
10 CPLR.
11 THAT every objection raised during a deposition
shall be stated succinctly and framed so as not to
12 suggest an answer to the deponent and, at the request
of the questioning attorney, shall include a clear
13 statement as to any defect in the form or other basis
of error or irregularity. Except to the extent
14 permitted by CPI.R 3115 or by this rule, during the
course of the examination persons in attendance shall
15 not make statements or comments that interfere with the
questioning.
16
THAT a deponent shall answer all question at a
17 deposition, except (i) to preserve a privilege or right
of confidentiality, (ii) to enforce a limitation set
18 forth in an order of a court, or (iii) when the
question is plainly improper and would, if answered
19 - cause a significant prejudice to person. An
any
attorney shall not direct a deponent not to answer
20 except as provided in CPLR Rule 3115 or this
subdivision. Any refusal to answer or direction not to
21 answer shall be accompanied by a succinct and clear
statement of the basis therefore. If the deponent does
22 not answer a question, the examining party shall have
the right complete the remainder of the deposition.
23
THAT an attorney shall not interrupt the
24 deposition for the purpose of communicating with the
deponent unless all parties consent or the
25 communication is made for the purpose of determining
877-479-2484 USLEGALSUPPORT,INC. www.usiegalsupporteem
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 5]
1
2 grounds set forth in Section 221.2 of these rules and,
in such event, the reason for the communication shall
3 be stated for the record succinctly and clearly.
4 THAT failure to object to any question or to
move to strike any testimony at this examinatiori shall
5 not be a bar or waiver to make such objection or motion
at the time of the trial of this action, and is hereby
6 reserved; and
7 THAT this examination may be signed and sworn to
by the witness examined herein before any Notary
8 Public, but failure to do so or to return the original
of the examination to the attorney on whose behalf the
9 examination is taken shall not be deemed a waiver of
the rights provided by Rules 3116 and 3117 of the CPLR,
10 and shall be controlled thereby; and
11 THAT certification and filing of the original of
this examination .are waived; and
12
THAT the questioning attorney shall provide
13 counsel for the witness examined herein with a copy of
this examination at no charge.
14
15 * * *
16
17
18
19
20
21
22
23
24
25
877-479-2484 USLEGALSUPPORT,1NC. www,usiegalsupportcom
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 6]
1 RICHARD PITCH M.D.
2 R I C H A R D P I T C H M. D., 1563 Montauk
3 Highway, Oakdale, New York, 11769, after having
4 been duly sworn by Thomas E. Brasacchio, a
5 Notary Public of the State of New York, was
6 examined and testified as follows:
7
8 EXAMINATION BY MR, WEBB:
9 Q . Good afternoon, Dr. Pitch. Thank you
10 for your patience with us this morning.
11 As I mentioned my name is Mathew Webb and I
12 represent Janssen Pharmaceuticals in this case.
13 Doctor, you are a board certified
14 psychiatrist in the State of New York?
15 A, Yes.
16 Q. And, you first met the plaintiff in
17 this case, xxxxxx xxxxxxxx, on November 3rd,
18 2.009?
19 A. Yes.
-
20 Q. And, you treated her for psychiatric
21 conditions?
22 A. Yes.
23 Q. When you first met Ms. she
xxxxxxxx,
24 was pregnant, right?
25 A. Yes.
877-479-2484 USLEGALSUPPORT,1NC. www.uslegaissippGrt.com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 7]
1 RICHARD PITCH M.D.
2 Q. She was about ten weeks pregnant?
3 A. That's right.
4 Q. You determined on the first date that
5 you considered her to have a high risk pregnancy
6 because of medication she was taking?
7 A. Yes.
8 Q. When you first met Ms. xxxxxxxx in
9 November of was she concerned about
2009, already
10 the effects the medication could have on her
11 pregnancy?
12 A. Yes.
13 Q. Can you tell me what she told you
14 about that?
.15 A. Should I consult record or just give
my
16 you overall?
my
17 Q. You can give me your overall or
18 consult your records.
19 A. This is as I Tm On a
speaking her,
20 number of medications, which things are safer for my
21 pregnancy.
22 I can't put it in those terms. I should say
23 we spent a lot of that first sessions deciding what
24 would be the safest course of action, balancing
25 treating her illnesses and the from
protecting baby
877-479-2484 USLEGAL SUPPORT, INC www.ustegalsupportcom
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 8]
1 RICHARD PITCH M.D.
2 any adverse effects from medications.
3 There is also the balance of not treating the
4 mental illness, what effect a decompensating mom
5 would have on a fetus.
6 That was a lot of our conversation on the
7 first day.
8 MS. MONTE: Can you read back the
9 answer?
10 (Whereupon, the requested portion was read back
11 by the reporter.)
12 Q. Just so I 'm clear, Dr. Pitch.
13 When xxxxxx xxxxxxxx came into your office
14 on November 3rd, 2009, it is your understanding
15 that she already understood there was a risk
16 associated with the medications that she was
17 taking?
18 A. Yes.
19 Q. Do you know who told her there was a
20 risk associated with the medications that-she was
21 taking?
22 A. I assumed, that it is common knowledge.
23 Q. Did Ms. xxxxxxxx know what is meant
. . 24 when a medication is a category C, before you
25 told her?
877479-2484 USLEGALSUPPORT,INC. www.uslogalsupport.com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
(Page 9]
1 RICHARD PITCH M.D.
2 MS, FABIANO: If you know, doctor.
3 A. I don't know whether she knew that
4 before I told her.
5 Q. Did Ms. xxxxxxxx tell you that any
6 other doctor warned her of the risk of taking
7 Topamax, during her pregnancy?
8 THE WITNESS: Can you repeat back,
9 what the question was please?
10 (Whereupon, the requested portion was read back
11 by the reporter.)
12 A. I don't know specifically.
13 Q. In January of 2010, you learned from
14 Ms. xxxxxxxx that her baby had a birth defect, is
15 that correct?
!
16 A. January 2010?
17 Q. Yes.
18 A. Yes. January 26th, 2010, I have a note
19 saying that her sonogram the day before showed that
20 the baby had a cleft lip on one side, but no cleft
21 palette was yet seen.
22 Q. Dr. Pitch, you don't know what caused
23 that birth defect, do you?
24 MS. FABIANO: Only if you know.
25 A. No.
877479-2484 USLEGALSUPPORT,INC. www.usiegalsupport.com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 10]
1 RICHARD PITCH M.D.
2 Q. In your first deposition, you
3 testified about the background risk of birth
4 defects?
5 A. Yes.
6 Q. Can you explain what you mean by
7 background risk?
8 A. Let me see if I can. I
9 I'm just to be not be whatever --
Yes, trying
10 Q. Do your best?
11 A. Background risk refers to the risk of
12 the something happening regardless of cause. In the
13 totality of the population, there is a background
14 risk of any given birth defect, a certain percent of
15 that birth defect, and then, if you want to to
try
16 figure out whether -
17 Can I strike that and start again?
18 MS. MONTE: You can start again. You
19 can't strike it. You oan explain it
20 again.
21 A. Background risk refers to the overall
22 risk of a problem in the general population.
23 Q. So, regardless of whether a mother
24 takes a medications, there is a still a chance of
25 a birth defect?
877-479-2484 USLEGALSUPPORT, INC. www.usiegalsupport.com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 11]
1 RICHARD PITCH M.D.
2 A. That's correct.
3 Q. Did you explain that to Ms. xxxxxxxx?
4 A. I believe so.
5 I don't know if I have a specific note on
6 that, but that would a natural part of our
7 conversation at that stage.
8 Q. Do you remember the response to that
9 conversation?
10 A. No, I don't remember.
11 Q. And, a cleft lip with or without a
12 cleft palette is one of the most common birth
13 defects in this country?
14 A. I don't remember the risk number for
15 that.
16 It does sound pretty common to me but I would
17 be guessing. It is easy enough to look that up.
18 Q. As a doctor, you would become
19 concerned about a medication, if the occurrence
20 of birth defects rises above the background rate?
21 A. That's correct.
22 Q. You would not want a medication label
23 to include a list of every single birth defect
24 that occurred, while someone was taking a
25 medication?
877-479-2484 USLEGALSUPPORT,INC. www.uslegalsupport,com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
(Page 12]
1 RICHARD PITCH M.D.
2 A. I would want it to reflect likely added
3 due to the medication. I would want that
burden,
4 information to be synthesized for me.
5 Q. Can you explained what you mean by
6 added burden.
7 A. If a particular .medication had a clear
8 increased risk of any added birth defect, I would
9 want to know about that.
10 Q. a clear increased you mean a
By risk,
11 clear increased risk over and above the
12 back ground rate?
13 A. That's correct.
14 Q. As you testified at your previous
15 deposition, Ms . xxxxxxxx was several
taking
16 medications, when she found out she was pregnant?
17 A. That' s correct.
18 Q. She was bupropion?
taking
19 A. Let me look at notes.
my
20 Ready.
21 Q. She was taking bupropion?
22 A. res.
23 Q. she was fluoxetine?
And, taking
24 A. he.
Why
25 Q. she was Abilify?
And, taking
877-479-2484 USLEGALSUPPORT,INC. www.usiegalsapport.com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 13]
1 RICHARD PITCH M.D.
2 A. Yes.
3 Q. You don't know which of those drugs,
4 if any, caused Canagy S birth defect?
5 A. Correct.
6 Q. It could be none of them had anything
7 to do with his birth defect?
8 A. Correct.
9 Q. Do you know if Ms. xxxxxxxx was a
10 smoker during the first trimester of her
11 pregnancy?
12 A. I don't know that.
13 Let me look it up.
14 I don't have a notation of whether or not she
15 smoked.
16 Q. You don't have any recollection of
17 discussing smoking with her?
18 A. No.
19 Q. In November of 2009, Ms. xxxxxxxx was
20 taking Topamax for psychiatric conditions?
21 A. Correct.
22 Q. What were those conditions?
23 A. Bipolar disorder.
24 Correct that. Not bipolar.
25 Mood disorder not otherwise specified, OCD,
877479-2484 USLEGAL SUPPORT,INC. www.uslegalsupport.com
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 14]
1 RICHARD PITCH M.D.
2 and border line personality disorder.
3 Q . Can you tell me, how those conditions
4 manifested themselves in Ms. xxxxxxxx?
5 A. Emotional dis-regulation, difficulty
6 managing rage, lots of anxiety, self mutilation
7 including cutting, suicidal thinking and suicidal
8 attempts, relationship problems,
9 Q. And, those are serious medical
10 issues?
11 A. Yes.
12 Q. It is very important to control those
13 conditions?
14 A. Very much.
15 Q. You testified the last time we were
16 here, that in 2009 and 2010,
Topamar was ocesmonly
17 prescribed and commonly used to treat psychiatric
18 conditions?
19 A. That's right.
20 Q. It is common for doctors to prescribe
21 medications for clients, beyond those which the
22 drug is FDA approved for, is that right?
23 A. That's right.
24 Q. I believe that you said last time
25 that you learned that Topamax could be used to
877-4794484 USLEGALSUPPORT,INC, www.nslegalsupportcom
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019
[Page 15]
1 RICHARD PITCH M.D.
2 treat psychiatric conditions at the Long Island
3 Jewish Hospital, is that correct?
4 A. That's correct.
5 Q. That was during your residency?
6 A. Yes.
7 Q. What were the years of your
8 residency?
9 A. Residency, 1991 to 1995.
10 Actually, I don't remember if Topamax was
11 around much then, but we continued to learn through
12 practice and later studies.
13 Q. And, you discussed using Topamax to
14 treat psychiatric conditions with your colleagues
15 in the field?
16
Preview
FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 ! NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 1] SUPREME COURT OF THE STATE OF NEW YORK COPy COUNTY OF SU F FOLK u -------- ------------__-------__------X xxxxxx xxxxxxxx, on behalf o f O - an under the age of S , infant 18, and xxxxxx SCEALLER individitally, Plaintiffs, -against- Index No. 026910/12 RONAID J. TADEO, M.D., RICHARD PITCH, M.D., SCOTT BERLIN, M.D., SHORE PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGIN ASSOCIATES, JANSSEN k/n/a ORTHO-MCNEIL- PHARMACEUTICALS, INC., JANSSEN PHARMACEUTICALS, INC., and ZYDUS PHARMACEUTICALS USA, INC., Defendants. March 12, 2015 12:17 p.m. 170 Old Country Road, Mineola, New York, 11501 EXAMINATION BEFORE TRIAL of DR. RICHARD PITCH, a DEFENDANT herein, taken by the PLAINTI F FS/DEFENDANTS pursuant to order, held at the above place and time, before Thomas E. Brasacchio, a Court Reporter and Notary Public for the State of New York. 877-479-2484 USLEGALSUPPORT,INC. www.uslegalsupport.com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 2] 1 A P P E A R A N C E S: 3 4 NAPOLI BERN RIPKA LLP, SHKOLINIK, Attorneys for the Plaintiffs, 5 350 Fifth Avenue, Suite 7413, New York, New York, 10118, 6 By: DANIELLE BRENNER, ESQ. 7 8 MITCHELL J. ANGEL, PLLC, Attorney for Richard Pitch, M.D., 9 170 Old Country Road, Mineola, New York, 11501 10 By: ANGELA ESQ. FABIANO, 11 12 BOWER LAW, P.C., Attorneys for Ronald J. Tadeo, M.D., 13 And Shore Psychiatric Center, . 1220 RXR Plaza, 14 Uniondale, New York, 11556, By: ANINA MONTE, ESQ. 15 16 BARTLETT, MCDONOUGH & MONAGHAN, LP, 17 Attorneys for Scott Berlin, M.D., And Berlin OB/GYN Associates, 18 170 old Country Road, Mineola, New York, 11501, 19 By: DOUGLAS LANGHOLE, ESQ. 20 21 SILLS CUNMIS & GROSS, Attorneys for Zydus Pharmaceuticals, 22 30 Rockefeller Plaza, New York, New York, 10112, 23 By: ANDREW W. SCHNARTE , ESQ. 24 25 877-479-2484 USLEGALSUPPORT,INC, www.uslegalsupportcom FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 3] 1 3 PATTERSON, BETENAP, WEBB & TYLER, LLP, Attorneys for Janssen Pharmaceuticals, 4 1133 Avenue of the Americas, New York, New York, 10036-6710, 5 By: NATTHEW WEBB, ESQ. 7 KAUFMAN, BOORGEEST & RYAN, LLP, Attorneys for Pamily Psychology 8 Of Long Island, 1205 Franklin Avenue Sui.te 200 , 9 Garden City, New York, 15530, By: EEITE L. EAPLAN, ESQ. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 877-479-2484 USLEGALSUPPORT.INC. www,nslegalsupport.com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 4] 1 S T I P U L A T I O N S 3 4 IT IS HEREBY STIFULATED and AGREED, by and between the attorneys for the respective parties 5 herein, and in compliance rule 221 of the Uniform Rules for the Trial Courts: 6 THAT the parties recognize the provision of Rule 7 3115 subdivisions (b), (c) and/or (d). All objections made at a deposition shall be noted.by the officer 8 before whom the deposition is taken and the answer shall be given and the deposition shall proceed subject 9 to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the 10 CPLR. 11 THAT every objection raised during a deposition shall be stated succinctly and framed so as not to 12 suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear 13 statement as to any defect in the form or other basis of error or irregularity. Except to the extent 14 permitted by CPI.R 3115 or by this rule, during the course of the examination persons in attendance shall 15 not make statements or comments that interfere with the questioning. 16 THAT a deponent shall answer all question at a 17 deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set 18 forth in an order of a court, or (iii) when the question is plainly improper and would, if answered 19 - cause a significant prejudice to person. An any attorney shall not direct a deponent not to answer 20 except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to 21 answer shall be accompanied by a succinct and clear statement of the basis therefore. If the deponent does 22 not answer a question, the examining party shall have the right complete the remainder of the deposition. 23 THAT an attorney shall not interrupt the 24 deposition for the purpose of communicating with the deponent unless all parties consent or the 25 communication is made for the purpose of determining 877-479-2484 USLEGALSUPPORT,INC. www.usiegalsupporteem FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 5] 1 2 grounds set forth in Section 221.2 of these rules and, in such event, the reason for the communication shall 3 be stated for the record succinctly and clearly. 4 THAT failure to object to any question or to move to strike any testimony at this examinatiori shall 5 not be a bar or waiver to make such objection or motion at the time of the trial of this action, and is hereby 6 reserved; and 7 THAT this examination may be signed and sworn to by the witness examined herein before any Notary 8 Public, but failure to do so or to return the original of the examination to the attorney on whose behalf the 9 examination is taken shall not be deemed a waiver of the rights provided by Rules 3116 and 3117 of the CPLR, 10 and shall be controlled thereby; and 11 THAT certification and filing of the original of this examination .are waived; and 12 THAT the questioning attorney shall provide 13 counsel for the witness examined herein with a copy of this examination at no charge. 14 15 * * * 16 17 18 19 20 21 22 23 24 25 877-479-2484 USLEGALSUPPORT,1NC. www,usiegalsupportcom FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 6] 1 RICHARD PITCH M.D. 2 R I C H A R D P I T C H M. D., 1563 Montauk 3 Highway, Oakdale, New York, 11769, after having 4 been duly sworn by Thomas E. Brasacchio, a 5 Notary Public of the State of New York, was 6 examined and testified as follows: 7 8 EXAMINATION BY MR, WEBB: 9 Q . Good afternoon, Dr. Pitch. Thank you 10 for your patience with us this morning. 11 As I mentioned my name is Mathew Webb and I 12 represent Janssen Pharmaceuticals in this case. 13 Doctor, you are a board certified 14 psychiatrist in the State of New York? 15 A, Yes. 16 Q. And, you first met the plaintiff in 17 this case, xxxxxx xxxxxxxx, on November 3rd, 18 2.009? 19 A. Yes. - 20 Q. And, you treated her for psychiatric 21 conditions? 22 A. Yes. 23 Q. When you first met Ms. she xxxxxxxx, 24 was pregnant, right? 25 A. Yes. 877-479-2484 USLEGALSUPPORT,1NC. www.uslegaissippGrt.com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 7] 1 RICHARD PITCH M.D. 2 Q. She was about ten weeks pregnant? 3 A. That's right. 4 Q. You determined on the first date that 5 you considered her to have a high risk pregnancy 6 because of medication she was taking? 7 A. Yes. 8 Q. When you first met Ms. xxxxxxxx in 9 November of was she concerned about 2009, already 10 the effects the medication could have on her 11 pregnancy? 12 A. Yes. 13 Q. Can you tell me what she told you 14 about that? .15 A. Should I consult record or just give my 16 you overall? my 17 Q. You can give me your overall or 18 consult your records. 19 A. This is as I Tm On a speaking her, 20 number of medications, which things are safer for my 21 pregnancy. 22 I can't put it in those terms. I should say 23 we spent a lot of that first sessions deciding what 24 would be the safest course of action, balancing 25 treating her illnesses and the from protecting baby 877-479-2484 USLEGAL SUPPORT, INC www.ustegalsupportcom FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 8] 1 RICHARD PITCH M.D. 2 any adverse effects from medications. 3 There is also the balance of not treating the 4 mental illness, what effect a decompensating mom 5 would have on a fetus. 6 That was a lot of our conversation on the 7 first day. 8 MS. MONTE: Can you read back the 9 answer? 10 (Whereupon, the requested portion was read back 11 by the reporter.) 12 Q. Just so I 'm clear, Dr. Pitch. 13 When xxxxxx xxxxxxxx came into your office 14 on November 3rd, 2009, it is your understanding 15 that she already understood there was a risk 16 associated with the medications that she was 17 taking? 18 A. Yes. 19 Q. Do you know who told her there was a 20 risk associated with the medications that-she was 21 taking? 22 A. I assumed, that it is common knowledge. 23 Q. Did Ms. xxxxxxxx know what is meant . . 24 when a medication is a category C, before you 25 told her? 877479-2484 USLEGALSUPPORT,INC. www.uslogalsupport.com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 (Page 9] 1 RICHARD PITCH M.D. 2 MS, FABIANO: If you know, doctor. 3 A. I don't know whether she knew that 4 before I told her. 5 Q. Did Ms. xxxxxxxx tell you that any 6 other doctor warned her of the risk of taking 7 Topamax, during her pregnancy? 8 THE WITNESS: Can you repeat back, 9 what the question was please? 10 (Whereupon, the requested portion was read back 11 by the reporter.) 12 A. I don't know specifically. 13 Q. In January of 2010, you learned from 14 Ms. xxxxxxxx that her baby had a birth defect, is 15 that correct? ! 16 A. January 2010? 17 Q. Yes. 18 A. Yes. January 26th, 2010, I have a note 19 saying that her sonogram the day before showed that 20 the baby had a cleft lip on one side, but no cleft 21 palette was yet seen. 22 Q. Dr. Pitch, you don't know what caused 23 that birth defect, do you? 24 MS. FABIANO: Only if you know. 25 A. No. 877479-2484 USLEGALSUPPORT,INC. www.usiegalsupport.com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 10] 1 RICHARD PITCH M.D. 2 Q. In your first deposition, you 3 testified about the background risk of birth 4 defects? 5 A. Yes. 6 Q. Can you explain what you mean by 7 background risk? 8 A. Let me see if I can. I 9 I'm just to be not be whatever -- Yes, trying 10 Q. Do your best? 11 A. Background risk refers to the risk of 12 the something happening regardless of cause. In the 13 totality of the population, there is a background 14 risk of any given birth defect, a certain percent of 15 that birth defect, and then, if you want to to try 16 figure out whether - 17 Can I strike that and start again? 18 MS. MONTE: You can start again. You 19 can't strike it. You oan explain it 20 again. 21 A. Background risk refers to the overall 22 risk of a problem in the general population. 23 Q. So, regardless of whether a mother 24 takes a medications, there is a still a chance of 25 a birth defect? 877-479-2484 USLEGALSUPPORT, INC. www.usiegalsupport.com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 11] 1 RICHARD PITCH M.D. 2 A. That's correct. 3 Q. Did you explain that to Ms. xxxxxxxx? 4 A. I believe so. 5 I don't know if I have a specific note on 6 that, but that would a natural part of our 7 conversation at that stage. 8 Q. Do you remember the response to that 9 conversation? 10 A. No, I don't remember. 11 Q. And, a cleft lip with or without a 12 cleft palette is one of the most common birth 13 defects in this country? 14 A. I don't remember the risk number for 15 that. 16 It does sound pretty common to me but I would 17 be guessing. It is easy enough to look that up. 18 Q. As a doctor, you would become 19 concerned about a medication, if the occurrence 20 of birth defects rises above the background rate? 21 A. That's correct. 22 Q. You would not want a medication label 23 to include a list of every single birth defect 24 that occurred, while someone was taking a 25 medication? 877-479-2484 USLEGALSUPPORT,INC. www.uslegalsupport,com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 (Page 12] 1 RICHARD PITCH M.D. 2 A. I would want it to reflect likely added 3 due to the medication. I would want that burden, 4 information to be synthesized for me. 5 Q. Can you explained what you mean by 6 added burden. 7 A. If a particular .medication had a clear 8 increased risk of any added birth defect, I would 9 want to know about that. 10 Q. a clear increased you mean a By risk, 11 clear increased risk over and above the 12 back ground rate? 13 A. That's correct. 14 Q. As you testified at your previous 15 deposition, Ms . xxxxxxxx was several taking 16 medications, when she found out she was pregnant? 17 A. That' s correct. 18 Q. She was bupropion? taking 19 A. Let me look at notes. my 20 Ready. 21 Q. She was taking bupropion? 22 A. res. 23 Q. she was fluoxetine? And, taking 24 A. he. Why 25 Q. she was Abilify? And, taking 877-479-2484 USLEGALSUPPORT,INC. www.usiegalsapport.com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 13] 1 RICHARD PITCH M.D. 2 A. Yes. 3 Q. You don't know which of those drugs, 4 if any, caused Canagy S birth defect? 5 A. Correct. 6 Q. It could be none of them had anything 7 to do with his birth defect? 8 A. Correct. 9 Q. Do you know if Ms. xxxxxxxx was a 10 smoker during the first trimester of her 11 pregnancy? 12 A. I don't know that. 13 Let me look it up. 14 I don't have a notation of whether or not she 15 smoked. 16 Q. You don't have any recollection of 17 discussing smoking with her? 18 A. No. 19 Q. In November of 2009, Ms. xxxxxxxx was 20 taking Topamax for psychiatric conditions? 21 A. Correct. 22 Q. What were those conditions? 23 A. Bipolar disorder. 24 Correct that. Not bipolar. 25 Mood disorder not otherwise specified, OCD, 877479-2484 USLEGAL SUPPORT,INC. www.uslegalsupport.com FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 14] 1 RICHARD PITCH M.D. 2 and border line personality disorder. 3 Q . Can you tell me, how those conditions 4 manifested themselves in Ms. xxxxxxxx? 5 A. Emotional dis-regulation, difficulty 6 managing rage, lots of anxiety, self mutilation 7 including cutting, suicidal thinking and suicidal 8 attempts, relationship problems, 9 Q. And, those are serious medical 10 issues? 11 A. Yes. 12 Q. It is very important to control those 13 conditions? 14 A. Very much. 15 Q. You testified the last time we were 16 here, that in 2009 and 2010, Topamar was ocesmonly 17 prescribed and commonly used to treat psychiatric 18 conditions? 19 A. That's right. 20 Q. It is common for doctors to prescribe 21 medications for clients, beyond those which the 22 drug is FDA approved for, is that right? 23 A. That's right. 24 Q. I believe that you said last time 25 that you learned that Topamax could be used to 877-4794484 USLEGALSUPPORT,INC, www.nslegalsupportcom FILED: SUFFOLK COUNTY CLERK 01/10/2019 10:08 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/10/2019 [Page 15] 1 RICHARD PITCH M.D. 2 treat psychiatric conditions at the Long Island 3 Jewish Hospital, is that correct? 4 A. That's correct. 5 Q. That was during your residency? 6 A. Yes. 7 Q. What were the years of your 8 residency? 9 A. Residency, 1991 to 1995. 10 Actually, I don't remember if Topamax was 11 around much then, but we continued to learn through 12 practice and later studies. 13 Q. And, you discussed using Topamax to 14 treat psychiatric conditions with your colleagues 15 in the field? 16