Preview
FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
EXHIBIT G
FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
THESELVINLAWFIRM, PLLC
ATTORNEYS AT LAW
3956 Merrick Road " Seaford, New York 11783 " Tel 516.992.0805 " Fax 516.678.3090
JARED M. SELVIN, Esq.
* DAVIDSHUMER, R.N., EsQ.*
*
SABRINAE. TAUB, Esq. of counsel
* Admitted
in NY
March 28, 2022
Kaufman Borgeest & Ryan LLP
14th
120 Broadway, FlOOr
New York, NY 10271
Attn.: Edward Dondes, Esq.
Re: Barbara Sackaroff v. Sudhir Diwan, M.D., et. al.
Index No.: 514577/2020
KBR File No.: 703.911
Dear Mr. Dondes:
Enclosed please find the original and one copy of the Examination Before Trial transcript of Sudhir
Diwan, M.D. which was taken on February 25, 2022. Please have the original signed and executed by
your client and returned to my office.
Pursuant to C.P.L.R. Rule 3116 (a), the party whom you represented is required to execute and return
the transcript of the Examination Before Trial within sixty (60) days from the date of this notice. Your
failure to comply within such time will deem the transcript admitted and will be used at a trialas though
signed without corrections.
Thank you for your cooperation in this matter.
Very Truly Yours,
THE SELVIN LAW FIRM, PLLC
Sabr'
BY: a E. T , Esq.
SET/ml
Encls.
LettertoKaufman encEBTtranscripts
Borgeest 3.28.22
FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
Page 1
February 25, 2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
___________-___________________ _____________Ç
BARBARA SACKAROFF,
Plaintiff,
-against- Index No.
514577/2020
SUDHIR DIWAN, M.D., SUDHIR DIWAN, MD, LLC,
ADVANCED SPINE ON PARK AVENUE MSO, LLC,
MANHATTAN SPINE AND PAIN MANAGEMENT, PLLC,
IGOR AMIGUD, M.D., JANDE WEEKS, CRNA, IGOR
AMIGUD PHYSICIAN, P.C., FIFTH AVENUE SURGERY
CENTER,
Defendants.
_________________-____________---- _______---x
Date: February 25, 2022
Time: 1:00 p.m.
EXAMINATION BEFORE TRIAL of SUDHIR
DIWAN, M.D., one of the Defendants, taken by
the Plaintiff, via video-conference, pursuant
to Court Order, held on the above mentioned
date and time, before a Notary Public of the
State of New York.
LEX/T n
Certined
on IGINAL
RIPT
vermed&o
@Lexi emand
E 'ur Reporting... A Lexitas Company
'-u Ad
800-678-0166
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NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
Page 2
February 25, 2022
1 A P P E A R A N C E S:
2
3 THE SELVIN LAW FIRM, PLLC
Attorneys for Plaintiff
4 3956 Merrick Road
Seaford, New York 11783
5 BY: DAVID SHUMER, ESQ., of Counsel
6
7 KAUFMAN, BORGEEST & RYAN, LLP
Attorneys for Defendants, Sudhir Diwan,
8 M.D, Sudhir Diwan, MD, LLC, Igor Amigud,
M.D. and Igor Amigud Physician, P.C.
9 120 Broadway
14th Floor
10 New York, New York 10271
BY: EDWARD DONDES, ESQ.
11
12
MARTIN, CLEARWATER & BELL, LLP
13 Attorneys for Defendant, Jande Weeks,
CRNA
14 220 East 42nd Street
New York, New York 10017
15 BY: NICOLE BARRESI, ESQ.
16
17 MARKS, O'NEIL, OBRIEN, DOHERTY & KELLY, P.C.
Attorneys for Defendant, Fifth Avenue
18 Surgery Center, LLC
600 Third Avenue
19 15th Floor
New York, New York 10016
20 BY: MARCY MITKOFF, ESQ.
21
22
23
24
25
DEITZ Court Reporting... A Lexitas Company
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February 25, 2022
1 S T I P U L A T I O N S
2
3 IT IS HEREBY STIPULATED AND AGREED by
4 and between Counsel for the respective parties
5 that:
6
7 All rights provided by the C.P.L.R.,
8 including the right to object to any question,
9 except as to form, or to move to strike any
10 testimony at this examination, are reserved,
11 and in addition the failure to object to any
12 question or to move to strike any testimony at
13 this examination shall not be a bar or waiver
14 to make such motion at, and is reserved for,
15 the trial of this action;
16
17 IT IS FURTHER STIPULATED AND AGREED by
18 and between Counsel for the respective parties
19 hereto, that this examination may be sworn to
20 by the witness being examined, before a Notary
21 Public other than the Notary Public before
22 whom this examination was begun; but the
23 failure to do so, or to return the original of
24 this examination to Counsel, shall not be
25 deemed a waiver of the rights provided by
DEITZ Court Reporting... A Lexitas Company
800-678-0166
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NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
Page 4
February 25, 2022
1 Rules 3116 and 3117 of the C.P.L.R., and shall
2 be controlled thereby;
3
4 IT IS FURTHER STIPULATED AND AGREED by
5 and between Counsel for the respective parties
6 hereto that this examination may be utilized
7 for all purposes as provided by the C.P.L.R.;
8
9 IT IS FURTHER STIPULATED AND AGREED by
10 and between Counsel for the respective parties
11 hereto, that the filing and certification of
12 the original of this examination shall be and
13 the same hereby is waived;
14
15 IT IS FURTHER STIPULATED AND AGREED by
16 and between Counsel for the respective parties
17 hereto that a copy of the within examination
18 shall be furnished to Counsel representing the
19 witness testifying without charge.
20
21 IT IS FURTHER STIPULATED AND AGREED by
22 and between Counsel for the respective parties
23 hereto that all rights provided by the
24 C.P.L.R., and Part 221 of the Uniform Rules
25 for the Conduct of Depositions, including the
DEITZ Court Reporting... A Lexitas Company
800-678-0166
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NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
Page 5
February 25, 2022
1 right to object to any questions, except as to
2 form, or to move to strike any testimony at
3 this examination are reserved; and in
4 addition, the failure to object to any
5 question or to move to strike any testimony at
6 this examination shall not be a bar or waiver
7 to make such motion at, and is reserved to,
8 the trial of this action.
9
10 IT IS FURTHER STIPULATED AND AGREED by
11 and between counsel for all parties present
12 that pursuant to CPLR section 3113(d) this
13 deposition is to be conducted by video
14 conference, that the court reporter, all
15 counsel, and the witness are all in separate
16 remote locations and participating via
17 videoconference (LegalView/Zoom) meeting under
18 the control of Lexitas Court Reporting
19 Service, that the officer administering the
20 oath to the witness need not be in the place
21 of the deposition and the witness shall be
22 sworn in remotely by the court reporter after
23 confirming the witness's identity, that this
24 videoconference will not be recorded in any
25 manner and that any recording without the
DEITZ Court Reporting... A Lexitas Company
800-678-0166
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NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
Page 6
February 25, 2022
1 express written consent of all parties shall
2 be considered unauthorized, in violation of
3 law, and shall not be used for any purpose in
4 this litigation or otherwise.
5
6 IT IS FURTHER STIPULATED that exhibits
7 may be marked by the attorney presenting the
8 exhibit to the witness, and that a copy of any
9 exhibit presented to a witness shall be
10 e-mailed to or otherwise in possession of all
11 counsel prior to any questioning of a witness
12 regarding the exhibit in question. All
13 parties shall bear their own costs in the
14 conduct of this deposition by video
15 conference, not withstanding the obligation by
16 CPLR to supply a copy of the transcript to the
17 deposed party by the taking party in civil
18 litigation matters.
19
20
21
22
23
24
25
DEITZ Court Reporting... A Lexitas Company
800-678-0166
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NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
Page 7
February 25, 2022
1 S U D H I R D I W A N, M.D., the witness
2 herein, having been first duly sworn
3 by a Notary Public of the State of New
4 York, was examined and testified as
5 follows:
6 THE REPORTER: Please state
7 your name for the record.
8 THE WITNESS: Sudhir Diwan,
9 M.D.
10 THE REPORTER: Please state
11 your address for the record.
12 THE WITNESS: 115 East 57th
13 Street, Suite 610, New York, New York
14 10022.
15 EXAMINATION BY
16 MR. SHUMER:
17 MR. SHUMER: Good afternoon,
18 Doctor.
19 THE WITNESS: Good afternoon.
20 MR. SHUMER: My name is David
21 Shumer. And I'm an attorney of
22 counsel to The Selvin Law Firm who
23 represents the Plaintiff in this
24 case, Barbara Sackaroff. I'm going
25 to be asking you some questions about
DEITZ Court Reporting... A Lexitas Company
800-678-0166
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February 25, 2022
1 S. DIWAN, M.D.
2 some care and treatment provided to
3 Barbara Sackaroff in and around the
4 time of January 7, 2020, the time of
5 a sacroiliac joint fusion the
6 procedure.
7 If at any time my questions
8 appear unclear for any reason, just
9 ask me to repeat or rephrase or
10 whatever you feel is necessary so
11 that you feel comfortable with my
12 questions before you answer them.
13 Nobody here wants you to guess at
14 them before you answer them. Okay?
15 THE WITNESS: Yes, sir.
16 MR. SHUMER: And, as you just
17 did, keep your answers verbal so that
18 court reporter can take down easily
19 what you say as opposed to gestures,
20 such as a nod of the head, will be
21 difficult for the court reporter to
22 take down. Okay?
23 THE WITNESS: Yes, sir.
24 MR. SHUMER: Lastly, if you
25 need to take a break at any time for
DEITZ Court Reporting... A Lexitas Company
800-678-0166
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February 25, 2022
1 S. DIWAN, M.D.
2 any reason, just say the word. I
3 want you to be comfortable during the
4 deposition. Okay?
5 THE WITNESS: Yes, sir. I am
6 on call for the hospital so if there
7 is an emergency, I will ask you. And
8 I also have a sugar issues, diabetes
9 issue, if I need ten minutes, I will
10 let you know. Right now I'm all set.
11 MR. SHUMER: Like I said, at
12 any time you need to take a break,
13 that's okay with me.
14 Q. Doctor, I received a copy of
15 your CV from Defense Counsel this
16 morning. And I have this as an -- I
17 don't know if you know -- but I have this
18 as a page count of 53 pages. But can we
19 have the court reporter, I guess we can
20 say so deemed as Plaintiff's Exhibit 1
21 with today's date on it.
22 (Whereupon, Curriculum Vitae
23 was marked as Plaintiff's Exhibit 1,
24 for identification, as of this date.)
25 (Whereupon, the Court Reporter
DEITZ Court Reporting... A Lexitas Company
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February 25, 2022
1 S. DIWAN, M.D.
2 shared Plaintiff's Exhibit 1 with the
3 Witness.)
4 Q. So Doctor, I have a copy of
5 your CV here and we can rely on the
6 wording on the. CV but when was it that
7 you came to the United States to practice
8 medicine?
9 A. I came to United States in
10 1988.
11 Q. And, you first became licensed
12 in the United States in 1998, correct?
13 A. Yes.
14 Q. If you can just give me an
15 overview what you were doing from 1988 to
16 1998?
17 A. So in '98 we didn't really
18 have any plans. So the plans of staying
19 here changed in 1989, I don't know the
20 date, and then when the plan change I had
21 to do some research to get my legal
22 papers. So I did some research, and then
23 I think research was until up to end of
24 1992, and then I apply for the residency.
25 But because it was too late I did not
DEITZ Court Reporting... A Lexitas Company
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February 25, 2022
1 S. DIWAN, M.D.
2 apply for residency of surgery. I don't
3 if you realize, but I was former surgeon
4 from India and practice in surgery. So I
5 had to change my specialty to anesthesia.
6 And then I started the residency in '93.
7 Initial first year was in surgery and
8 then next three years was in anesthesia.
9 So by the time I finish my training and
10 fellowship and need for the license was
11 early '97, '98.
12 Q. While still in India as a
13 doctor, you performed surgeries?
14 A. Yes, I did. I actually had my
15 own kind of a hospital, it's small, where
16 I used to do all my surges and part of my
17 practice was also spine surgeon.
18 Q. Back in India, when you say
19 part of your practice was also doing
20 spine surgeries, were you doing any
21 spinal fusion surgeries?
22 A. No. Just I was a general
23 surgeon, so I was not a spine surgeon, so
24 whatever we could as a general surgeon
25 that part I did.
DEITZ Court Reporting... A Lexitas Company
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February 25, 2022
1 S. DIWAN, M.D.
2 Q. What type of spinal surgeries
3 did you do in India as a general surgeon?
4 A. Disc removal, helping surgeon
5 who is doing extensive fusion.
6 Q. So you assisted on fusion
7 surgeries?
8 A. Yes.
9 Q. And then once in the United
10 States, during the time of your
11 residencies and as an anesthesiologist,
12 so from any time between 1998 and 1998,
13 did you perform any surgeries?
14 A. I did my training as resident,
15 yes. I was a surgical resident and I was
16 a surgical resident at St.
17 Luke's/Roosevelt Hospital which is now
18 Mount Sinai. And as part of the surgical
19 team, I was part of the trauma team. So
20 we did -- but I was resident. It wasn't
21 independent surgery but as a resident.
22 Q. I understand. What types of
23 surgeries -- let me ask it this
well,
24 way. Were any of those surgeries as a
25 resident spinal surgeries?
DEITZ Court Reporting... A Lexitas Company
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February 25, 2022
S. DIWAN, M.D.
2 A. I work with the neurosurgeon
3 and we did do some, I don't recall a lot,
4 because it depends on my rotation. As
5 intern first year, you get six weeks
6 rotation in every specialty. So I recall
7 some, not a lot, because in neurosurgery
8 used to do more brain surgery rather than
9 spine surgery. So it was random but yes,
10 I did some spine surgery with the
11 surgeon.
12 Q. Let's do it this way. So
13 after 1998 when you would've finished
14 your residency as of 1998?
15 A. No. I think I finished
16 residency in '96 and then I did
17 fellowship. In 1998, I was an attending.
18 Q. Where?
19 A. At Cornell, Weill Cornell.
20 Q. You were an attending in
21 anesthesiology?
22 A. Anesthesiology and pain
23 management.
24 Q. How long did you do that for?
25 A. I was at Cornell until 2010.
DEITZ Court Reporting... A Lexitas Company
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February 25, 2022
1 S. DIWAN, M.D.
2 I was a chair director of a pain
3 fellowship program. I actually build the
4 same pain fellowship program that I was
5 trained. The fellowship program that
6 they have right now is my baby. I build
7 it.
8 Q. And, in that program, you say,
9 I believe it was from around '98 to 2010,
10 am I correct, or during that time period?
11 A. Yes.
12 Q. Did you perform any fusion
13 surgeries during that time?
14 A. No fusion surgeries.
15 Q. I see here in your CV that
16 January 20th to the 21st of 2018 under
17 your section on your CV of Advanced
18 Training Certifications, it mentions the
19 CornerLoc procedure, correct?
20 A. Yes.
21 Q. So from time you finished that
22 fellowship 2010 up until the CornerLoc
23 training in 2018, did you perform any
24 sort of spinal surgeries?
25 A. No spinal surgeries. So I did
DEITZ Court Reporting... A Lexitas Company
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NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023
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Preview
FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 EXHIBIT G FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 THESELVINLAWFIRM, PLLC ATTORNEYS AT LAW 3956 Merrick Road " Seaford, New York 11783 " Tel 516.992.0805 " Fax 516.678.3090 JARED M. SELVIN, Esq. * DAVIDSHUMER, R.N., EsQ.* * SABRINAE. TAUB, Esq. of counsel * Admitted in NY March 28, 2022 Kaufman Borgeest & Ryan LLP 14th 120 Broadway, FlOOr New York, NY 10271 Attn.: Edward Dondes, Esq. Re: Barbara Sackaroff v. Sudhir Diwan, M.D., et. al. Index No.: 514577/2020 KBR File No.: 703.911 Dear Mr. Dondes: Enclosed please find the original and one copy of the Examination Before Trial transcript of Sudhir Diwan, M.D. which was taken on February 25, 2022. Please have the original signed and executed by your client and returned to my office. Pursuant to C.P.L.R. Rule 3116 (a), the party whom you represented is required to execute and return the transcript of the Examination Before Trial within sixty (60) days from the date of this notice. Your failure to comply within such time will deem the transcript admitted and will be used at a trialas though signed without corrections. Thank you for your cooperation in this matter. Very Truly Yours, THE SELVIN LAW FIRM, PLLC Sabr' BY: a E. T , Esq. SET/ml Encls. LettertoKaufman encEBTtranscripts Borgeest 3.28.22 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 1 February 25, 2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ___________-___________________ _____________Ç BARBARA SACKAROFF, Plaintiff, -against- Index No. 514577/2020 SUDHIR DIWAN, M.D., SUDHIR DIWAN, MD, LLC, ADVANCED SPINE ON PARK AVENUE MSO, LLC, MANHATTAN SPINE AND PAIN MANAGEMENT, PLLC, IGOR AMIGUD, M.D., JANDE WEEKS, CRNA, IGOR AMIGUD PHYSICIAN, P.C., FIFTH AVENUE SURGERY CENTER, Defendants. _________________-____________---- _______---x Date: February 25, 2022 Time: 1:00 p.m. EXAMINATION BEFORE TRIAL of SUDHIR DIWAN, M.D., one of the Defendants, taken by the Plaintiff, via video-conference, pursuant to Court Order, held on the above mentioned date and time, before a Notary Public of the State of New York. LEX/T n Certined on IGINAL RIPT vermed&o @Lexi emand E 'ur Reporting... A Lexitas Company '-u Ad 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 2 February 25, 2022 1 A P P E A R A N C E S: 2 3 THE SELVIN LAW FIRM, PLLC Attorneys for Plaintiff 4 3956 Merrick Road Seaford, New York 11783 5 BY: DAVID SHUMER, ESQ., of Counsel 6 7 KAUFMAN, BORGEEST & RYAN, LLP Attorneys for Defendants, Sudhir Diwan, 8 M.D, Sudhir Diwan, MD, LLC, Igor Amigud, M.D. and Igor Amigud Physician, P.C. 9 120 Broadway 14th Floor 10 New York, New York 10271 BY: EDWARD DONDES, ESQ. 11 12 MARTIN, CLEARWATER & BELL, LLP 13 Attorneys for Defendant, Jande Weeks, CRNA 14 220 East 42nd Street New York, New York 10017 15 BY: NICOLE BARRESI, ESQ. 16 17 MARKS, O'NEIL, OBRIEN, DOHERTY & KELLY, P.C. Attorneys for Defendant, Fifth Avenue 18 Surgery Center, LLC 600 Third Avenue 19 15th Floor New York, New York 10016 20 BY: MARCY MITKOFF, ESQ. 21 22 23 24 25 DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 3 February 25, 2022 1 S T I P U L A T I O N S 2 3 IT IS HEREBY STIPULATED AND AGREED by 4 and between Counsel for the respective parties 5 that: 6 7 All rights provided by the C.P.L.R., 8 including the right to object to any question, 9 except as to form, or to move to strike any 10 testimony at this examination, are reserved, 11 and in addition the failure to object to any 12 question or to move to strike any testimony at 13 this examination shall not be a bar or waiver 14 to make such motion at, and is reserved for, 15 the trial of this action; 16 17 IT IS FURTHER STIPULATED AND AGREED by 18 and between Counsel for the respective parties 19 hereto, that this examination may be sworn to 20 by the witness being examined, before a Notary 21 Public other than the Notary Public before 22 whom this examination was begun; but the 23 failure to do so, or to return the original of 24 this examination to Counsel, shall not be 25 deemed a waiver of the rights provided by DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 4 February 25, 2022 1 Rules 3116 and 3117 of the C.P.L.R., and shall 2 be controlled thereby; 3 4 IT IS FURTHER STIPULATED AND AGREED by 5 and between Counsel for the respective parties 6 hereto that this examination may be utilized 7 for all purposes as provided by the C.P.L.R.; 8 9 IT IS FURTHER STIPULATED AND AGREED by 10 and between Counsel for the respective parties 11 hereto, that the filing and certification of 12 the original of this examination shall be and 13 the same hereby is waived; 14 15 IT IS FURTHER STIPULATED AND AGREED by 16 and between Counsel for the respective parties 17 hereto that a copy of the within examination 18 shall be furnished to Counsel representing the 19 witness testifying without charge. 20 21 IT IS FURTHER STIPULATED AND AGREED by 22 and between Counsel for the respective parties 23 hereto that all rights provided by the 24 C.P.L.R., and Part 221 of the Uniform Rules 25 for the Conduct of Depositions, including the DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 5 February 25, 2022 1 right to object to any questions, except as to 2 form, or to move to strike any testimony at 3 this examination are reserved; and in 4 addition, the failure to object to any 5 question or to move to strike any testimony at 6 this examination shall not be a bar or waiver 7 to make such motion at, and is reserved to, 8 the trial of this action. 9 10 IT IS FURTHER STIPULATED AND AGREED by 11 and between counsel for all parties present 12 that pursuant to CPLR section 3113(d) this 13 deposition is to be conducted by video 14 conference, that the court reporter, all 15 counsel, and the witness are all in separate 16 remote locations and participating via 17 videoconference (LegalView/Zoom) meeting under 18 the control of Lexitas Court Reporting 19 Service, that the officer administering the 20 oath to the witness need not be in the place 21 of the deposition and the witness shall be 22 sworn in remotely by the court reporter after 23 confirming the witness's identity, that this 24 videoconference will not be recorded in any 25 manner and that any recording without the DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 6 February 25, 2022 1 express written consent of all parties shall 2 be considered unauthorized, in violation of 3 law, and shall not be used for any purpose in 4 this litigation or otherwise. 5 6 IT IS FURTHER STIPULATED that exhibits 7 may be marked by the attorney presenting the 8 exhibit to the witness, and that a copy of any 9 exhibit presented to a witness shall be 10 e-mailed to or otherwise in possession of all 11 counsel prior to any questioning of a witness 12 regarding the exhibit in question. All 13 parties shall bear their own costs in the 14 conduct of this deposition by video 15 conference, not withstanding the obligation by 16 CPLR to supply a copy of the transcript to the 17 deposed party by the taking party in civil 18 litigation matters. 19 20 21 22 23 24 25 DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 7 February 25, 2022 1 S U D H I R D I W A N, M.D., the witness 2 herein, having been first duly sworn 3 by a Notary Public of the State of New 4 York, was examined and testified as 5 follows: 6 THE REPORTER: Please state 7 your name for the record. 8 THE WITNESS: Sudhir Diwan, 9 M.D. 10 THE REPORTER: Please state 11 your address for the record. 12 THE WITNESS: 115 East 57th 13 Street, Suite 610, New York, New York 14 10022. 15 EXAMINATION BY 16 MR. SHUMER: 17 MR. SHUMER: Good afternoon, 18 Doctor. 19 THE WITNESS: Good afternoon. 20 MR. SHUMER: My name is David 21 Shumer. And I'm an attorney of 22 counsel to The Selvin Law Firm who 23 represents the Plaintiff in this 24 case, Barbara Sackaroff. I'm going 25 to be asking you some questions about DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 8 February 25, 2022 1 S. DIWAN, M.D. 2 some care and treatment provided to 3 Barbara Sackaroff in and around the 4 time of January 7, 2020, the time of 5 a sacroiliac joint fusion the 6 procedure. 7 If at any time my questions 8 appear unclear for any reason, just 9 ask me to repeat or rephrase or 10 whatever you feel is necessary so 11 that you feel comfortable with my 12 questions before you answer them. 13 Nobody here wants you to guess at 14 them before you answer them. Okay? 15 THE WITNESS: Yes, sir. 16 MR. SHUMER: And, as you just 17 did, keep your answers verbal so that 18 court reporter can take down easily 19 what you say as opposed to gestures, 20 such as a nod of the head, will be 21 difficult for the court reporter to 22 take down. Okay? 23 THE WITNESS: Yes, sir. 24 MR. SHUMER: Lastly, if you 25 need to take a break at any time for DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 9 February 25, 2022 1 S. DIWAN, M.D. 2 any reason, just say the word. I 3 want you to be comfortable during the 4 deposition. Okay? 5 THE WITNESS: Yes, sir. I am 6 on call for the hospital so if there 7 is an emergency, I will ask you. And 8 I also have a sugar issues, diabetes 9 issue, if I need ten minutes, I will 10 let you know. Right now I'm all set. 11 MR. SHUMER: Like I said, at 12 any time you need to take a break, 13 that's okay with me. 14 Q. Doctor, I received a copy of 15 your CV from Defense Counsel this 16 morning. And I have this as an -- I 17 don't know if you know -- but I have this 18 as a page count of 53 pages. But can we 19 have the court reporter, I guess we can 20 say so deemed as Plaintiff's Exhibit 1 21 with today's date on it. 22 (Whereupon, Curriculum Vitae 23 was marked as Plaintiff's Exhibit 1, 24 for identification, as of this date.) 25 (Whereupon, the Court Reporter DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 10 February 25, 2022 1 S. DIWAN, M.D. 2 shared Plaintiff's Exhibit 1 with the 3 Witness.) 4 Q. So Doctor, I have a copy of 5 your CV here and we can rely on the 6 wording on the. CV but when was it that 7 you came to the United States to practice 8 medicine? 9 A. I came to United States in 10 1988. 11 Q. And, you first became licensed 12 in the United States in 1998, correct? 13 A. Yes. 14 Q. If you can just give me an 15 overview what you were doing from 1988 to 16 1998? 17 A. So in '98 we didn't really 18 have any plans. So the plans of staying 19 here changed in 1989, I don't know the 20 date, and then when the plan change I had 21 to do some research to get my legal 22 papers. So I did some research, and then 23 I think research was until up to end of 24 1992, and then I apply for the residency. 25 But because it was too late I did not DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 11 February 25, 2022 1 S. DIWAN, M.D. 2 apply for residency of surgery. I don't 3 if you realize, but I was former surgeon 4 from India and practice in surgery. So I 5 had to change my specialty to anesthesia. 6 And then I started the residency in '93. 7 Initial first year was in surgery and 8 then next three years was in anesthesia. 9 So by the time I finish my training and 10 fellowship and need for the license was 11 early '97, '98. 12 Q. While still in India as a 13 doctor, you performed surgeries? 14 A. Yes, I did. I actually had my 15 own kind of a hospital, it's small, where 16 I used to do all my surges and part of my 17 practice was also spine surgeon. 18 Q. Back in India, when you say 19 part of your practice was also doing 20 spine surgeries, were you doing any 21 spinal fusion surgeries? 22 A. No. Just I was a general 23 surgeon, so I was not a spine surgeon, so 24 whatever we could as a general surgeon 25 that part I did. DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 12 February 25, 2022 1 S. DIWAN, M.D. 2 Q. What type of spinal surgeries 3 did you do in India as a general surgeon? 4 A. Disc removal, helping surgeon 5 who is doing extensive fusion. 6 Q. So you assisted on fusion 7 surgeries? 8 A. Yes. 9 Q. And then once in the United 10 States, during the time of your 11 residencies and as an anesthesiologist, 12 so from any time between 1998 and 1998, 13 did you perform any surgeries? 14 A. I did my training as resident, 15 yes. I was a surgical resident and I was 16 a surgical resident at St. 17 Luke's/Roosevelt Hospital which is now 18 Mount Sinai. And as part of the surgical 19 team, I was part of the trauma team. So 20 we did -- but I was resident. It wasn't 21 independent surgery but as a resident. 22 Q. I understand. What types of 23 surgeries -- let me ask it this well, 24 way. Were any of those surgeries as a 25 resident spinal surgeries? DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 13 February 25, 2022 S. DIWAN, M.D. 2 A. I work with the neurosurgeon 3 and we did do some, I don't recall a lot, 4 because it depends on my rotation. As 5 intern first year, you get six weeks 6 rotation in every specialty. So I recall 7 some, not a lot, because in neurosurgery 8 used to do more brain surgery rather than 9 spine surgery. So it was random but yes, 10 I did some spine surgery with the 11 surgeon. 12 Q. Let's do it this way. So 13 after 1998 when you would've finished 14 your residency as of 1998? 15 A. No. I think I finished 16 residency in '96 and then I did 17 fellowship. In 1998, I was an attending. 18 Q. Where? 19 A. At Cornell, Weill Cornell. 20 Q. You were an attending in 21 anesthesiology? 22 A. Anesthesiology and pain 23 management. 24 Q. How long did you do that for? 25 A. I was at Cornell until 2010. DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 14 February 25, 2022 1 S. DIWAN, M.D. 2 I was a chair director of a pain 3 fellowship program. I actually build the 4 same pain fellowship program that I was 5 trained. The fellowship program that 6 they have right now is my baby. I build 7 it. 8 Q. And, in that program, you say, 9 I believe it was from around '98 to 2010, 10 am I correct, or during that time period? 11 A. Yes. 12 Q. Did you perform any fusion 13 surgeries during that time? 14 A. No fusion surgeries. 15 Q. I see here in your CV that 16 January 20th to the 21st of 2018 under 17 your section on your CV of Advanced 18 Training Certifications, it mentions the 19 CornerLoc procedure, correct? 20 A. Yes. 21 Q. So from time you finished that 22 fellowship 2010 up until the CornerLoc 23 training in 2018, did you perform any 24 sort of spinal surgeries? 25 A. No spinal surgeries. So I did DEITZ Court Reporting... A Lexitas Company 800-678-0166 FILED: KINGS COUNTY CLERK 01/16/2023 09:29 AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 01/16/2023 Page 15