SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO

TOM FAGAN, Plaintiff, vs. SCRIPPS MEMORIAL HOSPITAL; JAIME VERCHER; PATRICIA BILINSKI; P. BALINSKI; JAMES CHAO, M.D., and DOES 1-100, Inclusive, Defendants. * * * * *

* * * * * Case No. 37-2008* 00077411-CU-MM-CTL

* * *

DEPOSITION OF DAVID J. CHAO, M.D. VOLUME I Taken at San Diego, California May 15, 2008

T. A. Martin, CSR Certificate No. 3613

1 I-N-D-E-X 2 3 4 5 6 EXHIBITS: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 INFORMATION REQUESTED: 23 24 25 2 1 Name of intensive care physician 2 Names of other physicians 5 Three pages Medical/Surgical Flowsheet PM Patient Assessment 6 Extremity Neurovascular Assessment Record 7 Progress Record 8 Duplex study report 9 Operative Report, February 9, 2007 10 Operative Report, February 10, 2007 11 Preop Physician Orders 12 Progress Record 13 Medical/Surgical Flowsheet AM Patient Assessment 93 107 116 213 217 220 76 93 75 1 Deposition Notice 2 Curriculum Vitae of Dr. David J. Chao 3 Civil Subpoena (Duces Tecum) 4 Delegation of Services Agreement Between Supervising Physician 11 11 11 11 PAGE DEPOSITION OF DAVID J. CHAO, M.D. May 15, 2008 Examination by Ms. Mulligan 6 PAGE

1 2 3 DEPOSITION OF DAVID J. CHAO, M.D. VOLUME I Pursuant to Notice to Take Deposition, and on

4 the 15th day of May, 2008, commencing at the hour of 5 9:00 o'clock a.m., at 402 West Broadway, Suite 2800, in 6 the City and County of San Diego, State of California, 7 before me, T. A. Martin, Certified Shorthand Reporter in 8 and for the State of California, personally appeared: 9 DAVID J. CHAO, M.D.,

10 who, called as a witness by the Plaintiff, being by me 11 first duly sworn, was thereupon examined as a witness in 12 said cause. 13 14 FOR THE PLAINTIFF: 15 16 17 18 FOR DR. DAVID CHAO and A.J. DURFEE: 19 20 21 22 FOR SCRIPPS MEMORIAL HOSPITAL: 23 24 25 3 LOTZ, DOGGETT & RAWERS, LLP By: DEBORAH C. BRICKNER ESQ. 101 West Broadway, Suite 1110 San Diego, California 92101 DEUPREY & ASSOCIATES By: DAN DEUPREY, ESQ. 402 West Broadway, Suite 2800 San Diego, California 92101 MULLIGAN & BANHAM By: JANICE F. MULLIGAN, ESQ. 2442 Fourth Avenue San Diego, California 92101 APPEARANCES

1 APPEARANCES - (CONTINUED) 2 3 FOR DR. JAMES CHAO: 4 5 6 7 VIDEOGRAPHER: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Alan Peak, Videographics NEIL, DYMOTT, FRANK, McFALL & TREXLER By: HUGH A. McCABE, ESQ. 1010 Second Avenue, Suite 2500 San Diego, California 92101

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Chao.

VIDEOGRAPHER: This is the depositions of Dr. David Chao, being taken on behalf of plaintiffs in the matter of Thomas Fagan versus Scripps Memorial Hospital, et al., in the Superior Court of California, County of San Diego, Case No. 37-2008-00077411. This deposition is being held in the offices of Deuprey & Associates, 402 West Broadway, Suite 2800 in San Diego, California on May 15, 2008 at 9:43 a.m. My name is Alan Peak. I'm the Legal Video Specialist with Videographics, 1448 15th Street, Imperial Beach, California. The Certified Shorthand Reporter is Tadzia Martin with San Diego Court Reporting. Will counsel please state their appearances for the record. MS. MULLIGAN: Good morning. Jan Mulligan. I have the privilege of representing Tom Fagan. MS. BRICKNER: Deborah Brickner on behalf of ScrippsHealth and Scripps Memorial Hospital. MR. McCABE: Hugh McCabe on behalf of Dr. James

MR. DEUPREY: Dan Deuprey on behalf of Dr. David Chao, and I'm also representing Mr. Durfee. VIDEOGRAPHER: And the witness may now be sworn. (Whereupon, the witness, Dr. David Chao, was duly sworn.) 5

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EXAMINATION BY MS. MULLIGAN: Q. Good morning, Doctor. A. Morning. Q. Have you ever had your deposition taken before? A. Yes. Q. On approximately how many occasions? A. A couple dozen. Q. By a couple dozen do you mean your best estimate is approximately 24? A. Sure. Q. Okay. You may be familiar with the ground rules of the taking of a deposition because of your prior experiences, but I'm going to go through a few of those ground rules on the record to make sure we have a common understanding. You have been placed under oath. Do you understand what that means? A. Yes. Q. So even though your deposition today is taken in relatively informal surroundings in your attorney's office, you understand that your testimony is subject to the penalty of perjury? A. Yes. Q. Is there any reason that you're aware of, such as fatigue, illness, use of medication or anything else 6

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that would preclude you from giving me your best testimony today? A. I don't think so. I'm a little bit under the weather, but I think I will be fine. Q. If at any point in time you believe that your health, fatigue or anything else prevents you from giving me your best testimony, would you please tell me and we will stop the deposition until you are ready to resume? A. Okay. Q. Because I want to make sure that you can give me your best testimony. So as of right now you think that your health doesn't prevent that, correct? A. No. I'm fine right now. Q. Good. If you need breaks at any time, if that will help, just tell us and we will accommodate you as well. Okay? A. Okay. Q. The court reporter will transcribe what has been said into a booklet form called a transcript. You'll have an opportunity to review the deposition transcript and to make any changes to it that you deem necessary. Do you understand that? A. Yes. Q. I want to you caution, though. Insofar as you have been placed under oath today, if you make 7

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substantive changes to that deposition transcript, I will comment on those changes, whether it be at arbitration or trial, and it could serve to discredit your testimony. Do you understand that? A. Yes. Q. That's why I wanted to make sure you could give me your best testimony today, and of course you have assured me you can, right? A. Yes. Q. From time I time I may ask you a question that makes no sense to you. I apologize. I'm not trying to trick you. If my question is unintelligible, don't even attempt to answer it. Okay? A. Okay. Q. Tell me that you don't understand it. I will do my best to rephrase it, and if I ever get to the point where it makes sense to you, then and only then respond. All right? A. Okay. Q. So by that same token, if you respond to my question, I'm going to assume that you understood it. Do you understand what I'm telling you? A. Okay. Q. Have you reviewed anything to prepare for your deposition? 8

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A. A little bit. Q. What did you review? A. Some limited records that my attorney provided to me. I believe they were the same set that were provided to Mr. Durfee. MS. MULLIGAN: Mr. Deuprey, is it in fact the same set that was provided to Mr. Durfee that was made an exhibit to Mr. Durfee's depo, the records that Dr. Chao was given by you? MR. DEUPREY: Yes. And it also included the memorandum made by Mr. Durfee about his phone contacts and text messages which was marked as an exhibit together with the separate record -- redacted phone record. And also Dr. Chao has reviewed portions of Mr. Durfee's deposition transcript. MS. MULLIGAN: Thank you, Mr. Deuprey. Q. Other than what you and your attorney have now identified, have you reviewed anything else whatsoever to prepare for your deposition? A. I looked at -- I guess we talked about the phone records. MR. DEUPREY: The phone records. MS. MULLIGAN: Those were Exhibits 4 and 5 from Mr. Durfee's deposition. Q. Were there any other phone records that you 9

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reviewed other than those exhibits to Mr. Durfee's deposition. MR. DEUPREY: I don't know about the exhibit numbers. I'd have to looked at them, but there is only one phone record with redactions that was made an exhibit. And then also you subpoenaed the some records. In connection with responding to the subpoenas, I believe Dr. Chao probably reviewed those documents. MS. MULLIGAN: I'm going to hand those documents to you and I will mark them today. These are the documents that were produced to my office yesterday. Mr. Deuprey, did you also produce those to other counsel? MR. DEUPREY: No. I just responded to the issuer of the subpoena. MS. MULLIGAN: That's fine. While Dr. Chao is looking at that -MR. DEUPREY: Is this Exhibit 1? MS. MULLIGAN: No. Let me mark, if I may, the notice of today's deposition as Exhibit 1. I'll mark as Exhibit 2 Dr. Chao's C.V. which was responsive to that notice. Exhibit 3 is the subpoena that has been the subject of recent testimony. Exhibit 4, collectively, the documents that were produced in response to that subpoena. 10

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(Exhibits 1 through 4 marked for identification.) MR. DEUPREY: May I see Exhibit 4 for a moment? I'll incorporate by reference the objections we made to the subpoena when we produced these. MS. MULLIGAN: There was no formal verification nor formal response, but rather I think you're referring, Mr. Deuprey, to a letter that you communicated to me? MR. DEUPREY: That's correct. BY MS. MULLIGAN: Q. Doctor, have you reviewed anything else to prepare for the deposition other than the items we have now identified? A. I don't think so. Q. I'm going to go through the subpoena which is Exhibit 3 so I can understand what documents may exist that were not produced because of Mr. Deuprey's objections. MR. DEUPREY: That assumes facts not in evidence; that Dr. Chao is, A, familiar with the objections I made when we produced these, and, B, is able to make any judgment as to the legal objections. Go ahead and ask him questions about what exists or doesn't. 11

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BY MS. MULLIGAN: Q. Dr. Chao, did you personally identify and retrieve documents in response to my subpoena, or did someone else do that for you? A. Both. Q. Can you tell me what documents you personally retrieved? MR. DEUPREY: By "retrieve" -- you know, that is a little ambiguous. BY MS. MULLIGAN: Q. Of the documents that are before you, sir, Exhibit 4, which if any of these items did you identify and give to your attorney? MR. DEUPREY: You mean the ones he looked at? I'm not sure what you mean by identify and give to your attorney. THE WITNESS: Yeah. I'm not clear on the question. MS. MULLIGAN: That's fine. We have got all day and longer if necessary. Q. Exhibit 4: Are any of the documents that are in Exhibit 4 documents that you personally gave to Mr. Deuprey? A. No. Q. Did you have somebody else assist you in 12

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identifying documents to give to Mr. Deuprey in response to the subpoena? A. Yes. Q. Who helped you? A. I simply asked the office staff to produce these documents. They know where they are filed; I don't. And it was a combination of Beth, Beverly, Susan and maybe even Leslie. Q. Are there any last names that you can identify for any of these four individuals? A. Beth Allen. Q. A-l-l-e-n? A. Yes. Q. Thank you. A. Beverly Mize. Q. Can you spell Mize, please? A. M-i-z-e. Q. Thank you. A. Who else did I say? Q. Susan. A. Susan Cook. Q. C-o-o-k? A. Yes. And Leslie Majors. Q. For whom do these four individuals work? 13

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A. They work for me/Oasis. Q. What is your relationship to Oasis? A. As a medical doctor, I am an independent contractor that practices out of the location. Q. Are you a shareholder in Oasis? A. Yes. Q. Do you have any positions as an officer or director? A. Yes. Q. What are your positions? A. President. Q. Who are the other shareholders in Oasis? A. There are none, no. Q. Are there any other officers in Oasis? A. I believe they are reflected in the corporate documents. Q. Who are they? A. I'm not sure. Q. As the president of Oasis, is it your testimony that you don't know who the other officers are? A. There are forms that were filled out, and through the officers I don't recall which is in which category. Q. Okay. While you may not recall the category, can you identify the individuals that hold any of those 14

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positions? A. I'm not sure right now. Q. So you are neither sure of any of the individuals by name nor of any positions, correct? MR. DEUPREY: I'm sorry. What do you mean by any other physicians? I'm not sure I follow you. MS. MULLIGAN: Positions. Q. So in other words, you know that you're president, correct? A. Yes. Q. How long have you been president? A. Since probably -- I want to say November of '07, but actually it might be '06, to tell you the truth. November of '06. Q. And from the time you became president to date, can you identify anybody that was a shareholder other than you in Oasis? A. No. Q. You have been the only shareholder since the time that you became president? A. Yes. Q. And with respect to officers, can you identify anybody, even if you don't recall exactly what their title was -- can you identify any individual that held an officer position with Oasis since you became president? 15

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A. I remember a series of meetings with different attorneys and business advisors, and I would have to go back and rely on formal minutes to give that you detail. Q. Now, with respect to documents that were produced, you told me that none of the things that are before us as Exhibit 4 were documents that you personally identified, correct? MR. DEUPREY: That's not what he said. He said he didn't personally give them to me. MS. MULLIGAN: Did you -- I'm sorry, Mr. Deuprey. Go ahead. MR. DEUPREY: But he had help in locating them. BY MS. MULLIGAN: Q. Did you personally identify any of the documents and retrieve them yourself, or was it one of the four individuals that actually took these records from -MR. DEUPREY: He's already said he didn't retrieve them, so answer whether or not you identified any of these documents. THE WITNESS: Can you clarify the question because I think it was a two-part question. BY MS. MULLIGAN: Q. Did you get any of those documents yourself? A. Physically get them? Q. Yes, sir. 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 job?

A. No. Q. What's -- excuse me. Beth Allen; what is her

A. She is -- she does a lot of things in the office. Q. You're lucky to have her. Is she the office manager? A. No. Q. Do you know if she has a job title? A. She is perhaps the business office supervisor, probably is the closest description. Q. How about Beverly Mize; what is her job? A. Primarily credentialing and paperwork. Q. How about Susan Cook? A. Susan serves in that similar capacity. Q. Credentialing? A. Yes. Q. How about Leslie Majors? A. More of an executive assistant. Q. Executive assistant to you? A. Yes. Q. Now, with respect to things that were requested in the subpoena, which is our Exhibit 3, the first thing asks for any and all calendars and/or schedules for David Chao, M.D., for 2/9/07 and 2/10. Take them one at a 17

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time. Do any calendars exist for you from that time frame? MR. DEUPREY: Okay. I just want to make sure my objections are recorded. MS. MULLIGAN: Of course. MR. DEUPREY: I don't want to get in the middle of the questioning, but we are objecting to any calendars relating to personal life, personal information, as protected by the right to privacy and irrelevant. And the term "any and all calendars" as phrased is ambiguous. But bearing those objections in mind, and without testifying to private, personal calendars, Doctor, you can respond to the question. MS. MULLIGAN: Actually I'd like to know if any personal calendars exist. I don't think it violates his right of privacy to tell me -MR. DEUPREY: You're just asking if they exist? MS. MULLIGAN: Yes, sir. MR. DEUPREY: Certainly you can respond to that. BY MS. MULLIGAN: Q. Do any personal calendars exist for you, Dr. Chao, for the time frame of February 9th and February 10th of '07? A. Not that I'm aware of. 18

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Q. How about a palm pilot? Do you know what I mean by a palm pilot? A. In the vernacular, sure. Q. Have you ever used a palm pilot to keep your personal calendar? A. At one point I actually did use a palm, but have switched from a palm to different versions. Q. Do you have any information saved about where your personal calendar was like in the time frame of February 9th and 10th of '07, whether it be electronically saved somewhere in cyberspace, in a phone, in a laptop, in a computer, in any format whatsoever? MR. DEUPREY: Objection. Ambiguous. Go ahead and try to respond. THE WITNESS: I did not find any. BY MS. MULLIGAN: Q. You looked? A. Yes. Q. What was your custom and practice in terms of keeping a personal calendar in February of '07? A. In February of '07 it would have been through my secretary and largely through a personal device. I don't know what you call it. Palm, for lack of a better word, but I don't know that it was a palm. Q. But you mean that generically in the sense of 19

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some sort of a device that has the ability to retain information such as calendaring? A. Some sort of calendaring function. Q. I'm holding up a BlackBerry. Generically when you say palm pilot, you don't necessarily mean that it was that brand or a BlackBerry brand, but something that served that purpose, correct? A. Sure. Q. Is it your testimony that you no longer have that device that you had in February of '07? A. I'm not positive as to which device I was using in February of '07. I have had some troubles where I have switched different devices over time. I'm not sure which specific device I was using in February of '07, but devices that I had at my disposal and on my laptop I looked and there was nothing for those dates. Q. Who is your provider for Internet access or telephone access with a mobile device? A. Today or that point in time? Q. Thank you. Good question. In February of '07 who was your provider? A. I'm not positive. Q. Who would know? Your secretary? A. Except my secretary -- current secretary wasn't with me in February of '07. 20

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Q. Who was your secretary in February of '07 A. I believe it would have been April. Q. April's last name, please? A. Greene. Q. G-r-e-e-n? A. I believe an e on the end. Q. G-r-e-e-n-e? A. I think so. Q. Okay. Does April Greene work for you or Oasis anymore? A. No. Q. What happened to April Greene? A. She moved away with her husband. Q. Where to? A. Somewhere in Northern California. Q. Was her husband's last name Greene, to the best of your knowledge? A. Yes. Q. Now, with respect to the bills that were used to pay for -- we will use the term palm pilot. You know that I'm talking about our generic use of that as has been described. Is that okay with you? A. Okay. Q. So when you had a palm pilot type device, was the bills paid for the service through Oasis? 21

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A. Not positive, but I believe they may have been. Q. Okay. Who would have been paying those bills? A particular employee responsible for writing the checks? A. The office manager and/or accountant. Q. Who was the office manager in February of '07? A. Louisa Creech. Q. C-r-e-e-c-h? A. Yes. Q. Is she still your office manager? A. No. Q. What happened to Ms. Creech? A. She took a new job. Q. Here in San Diego? A. Yes. Q. How is your current officer manager? A. I don't have one right now. Q. How about accountant; who was your accountant in February of '07? A. The accountant may have been Janet. Q. What is Janet's last name, please? A. I don't remember. Q. Does Janet work for a company or did she work for Oasis? Excuse me, Dr. Chao. I'm sorry for the interruption. 22

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Did Janet work Oasis? A. There was a combination where she worked for Oasis but somehow was a consultant. Q. Did she have a company? A. I don't think so. Q. What is Janet's last name? A. I don't recall. Q. Okay. She still does your accounting work? A. No, she doesn't. Q. Who does it now? A. Kim. Q. What is Kim's last name? A. N-g-y-u-e-n. Q. And does Ms. Ngyuen have a company or is she an employee of Oasis? A. She contracts independently. Q. And are all of your bills and records such as phone bill records from 2007 maintained at Oasis? A. I wouldn't know. Q. When you changed one palm pilot device to another, did you have a custom and practice of downloading all of the old information from one device to another device? A. It was certainly my goal when I switched to get all the information transferred, and I don't know that I 23

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ever dealt with it hands on, not being that tech savvy, but the requirement for me to transfer would always be at least to have phone numbers transferred and at least to have some sort of functioning schedule, whether it had to be recreated or transferred. I didn't pay much attention to history, more of what I need to do today this week and this month going forward. Q. Are you familiar with a term sync, to sync information between a BlackBerry and a laptop or between a BlackBerry and computer? A. Yes. Q. When I say BlackBerry, I'm now again talking generically about these devices. Did you have any sync function between whatever device held your calendar and any computers? A. There were various different methods of syncing over time. Q. How about in 2007? A. There may have been various methods during 2007. Q. Okay. A. They varied from -- currently there is an automatic sync that broke down two weeks ago and created havoc, and at different points in time there was some sort of manual or nearby infared sync that would happen. Q. So there was some method of syncing that was 24

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available to you between your hand-held device -- palm pilot, if you will -- and your computer, correct, in 2007, February? A. In general there probably was some sort of interaction, yes. Q. Was there a person that was responsible for handling your technical data such as the transfer of information or setting up your palm pilot or things of that nature? A. Pretty much it would have been my secretary. Q. April Greene? A. In 2007 it probably was April Greene, yes. I take that back. It may not have for sure been April Greene because there was an interim secretary between April and Leslie that didn't really work out. Q. Who was that person? A. Paulette. Q. What is Paulette's last name? A. A-m-i-g-b-l-e, I believe. Something like that. Q. I assume that because for tax purposes you have to send employees -- I don't know -- their W-2s at the end of the year that you have an address for where April Greene moved after she left her employment in 2000? A. I wouldn't personally know one way or the other. Q. Who would know? 25

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A. We'd have to go through someone at the office. As I am thinking about it, April may have been gone by April 2000 -- sorry -- February 2007. Q. It would have been Paulette? A. We could go back and look at the specific records, but I believe that may be the case. Q. Who would be the person most knowledgeable in your office as to the identity of such staff people and their addresses? A. We probably could go through the employment records and look. Typically the office manager, but unfortunately that position is vacant right now. Q. And in that vacancy is Beth Allen fulfilling those job functions more or less? A. Pretty much whoever is best able to fulfill it is fulfilling. Q. Now, with respect to calendars, is it your testimony that the only calendar that kept track of any of your personal appointments in February 2007 was on an electronic device such as a palm pilot? A. Fortunately or unfortunately I think the best and most reliable one in terms of things were actually here, in my head, but, yes, I did use this palm, BlackBerry -- whatever you want to call it -- device to help me with that. 26

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Q. And there were no other entries made anywhere else, to the best of your knowledge? A. I don't think so. Q. All right. Now, aside from personal calendar -when I use the term personal calendar, I hope you and I have had a common understanding. I meant for social occasions or those outside of the workplace. Did you understand that's what I meant? A. Yeah. My definition might have expanded towards business meetings and/or charitable functions or board meetings. I probably interpreted it to mean non-direct patient care functions. Q. That's what you mean by personal, correct? A. In general. Q. Anything non-direct patient care; is that your definition? A. I never sat down to define it, but I guess as I sit here that is probably accurate. Q. If you lost your palm pilot in February of '07, you would have had no means whatsoever of knowing where to go for these non-patient -- excuse me -- non-direct patient care appointments; is that your testimony? A. I would hope if I lost it in February '07 -like if I lost it today -- that I would have a means of retrieving what is currently on the books for things 27

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coming up. Q. What do you mean "on the books"? A. Appointments and things that I needed to do or go to, schedules. Q. Can you describe for us what books existed that would have carried such non-direct patient care appointments in February of 2007? A. I guess I was using "on the books" in the vernacular. I don't know that there were any -- I don't think that there were any books. Everything was done on a laptop. Q. So in addition to this palm-pilot-type device, the laptop also carried calendaring information for your non-direct patient care appointments? A. At you pointed out, I believe there was some sort of syncing function between the laptop and what I carried around. Q. Do you still have the same laptop from February of 2007? A. No, I don't. Q. What happened to it? A. Well, I was actually relatively unhappy recently when my computer -- my laptop started to do all sorts of funny things, and my secretary actually switched it out and got me a new computer and set me up with a new 28

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system. Q. Cool. Which secretary was that? A. That was Leslie. And just to clarify, she actually did use some outside help I believe. Q. That was Leslie Majors? A. Yes. Q. Okay. And what happened to your old computer? A. I'm not sure. Q. And to the best of your knowledge, was the information from your old computer transferred onto your new computer? A. That was my goal and belief. Q. With respect to the calendaring that was used in your laptop in February 2007, what kind of software was it, if you know? MR. DEUPREY: I have to object. Assumes facts not in evidence. He didn't say he had a calendar on his laptop, but go ahead and try to answer the question. BY MS. MULLIGAN: Q. Did I misunderstand you, Doctor? Did you not have some form of calendaring system for your non-direct patient care on your laptop in February 2007? MR. DEUPREY: That is a little different from calendar -- quote, "some form of calendaring system," end 29

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quote, but go ahead and try to clarify, Doctor. THE WITNESS: The whole point obviously of the laptop is to have some method of recovery if you break, lose your device or something, or the battery runs dead, whatever the case may be. And I certainly had some reasonable form of that, yes. BY MS. MULLIGAN: Q. Did you keep information on something like a Yahoo calendar, or did you have any particular software that was used or Internet provider? A. I'm not aware of the specific, but there was something that I utilized, yes. Q. And Leslie Majors still works for you, correct? A. Yes. Q. Oh, good. Now, with respect to information about appointments that is outside of the non-direct patient care -- that which I have called personal calendaring -- was there any track of your other appointments? A. I'm not sure I understand the question. Q. Okay. We have used the term "personal calendar." You told me that in your mind a personal calendar was any non-direct patient care. Do you remember that testimony? A. Yes. 30

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MR. DEUPREY: It's ambiguous, but go ahead. BY MS. MULLIGAN: Q. So now I'm talking about anything else. How did you keep track of appointments that were other than personal calendaring in February 2007? A. I'm not sure I understand your question. Q. How did you know where to go when you woke up in the morning and it was a work day? A. For the most part I know what my work schedule is and I would go. Q. Okay. A. The calendaring function was really more for -for example, if I had like a deposition today, it would be in there as out of the norm and I would be able to look at it and find Mr. Deuprey's address in it and come to the appointment. Q. How about with respect to days that you were going to be out of town; did that ever happen in February of 2007? A. I don't recall what my travel schedule was in February 2007. Q. How would you have known what your travel schedule was? How was that maintained in February 2007? A. Travel schedules would typically be in that calendar. 31

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Q. What we have called the personal calendar? A. The -- whatever palm device that we are talking about. Q. Okay. And how about surgery schedules? A. Typically, no. Q. Where were the surgery schedules maintained? A. At the office. Q. How were they maintained? In paper form, computer form, a combination? A. I'm told from my investigation of -- to the office staff to go look for it that they were maintained on something called Medical Manager. Q. Is Medical Manager a software system? A. Software or computer or technical system. Q. Who is the one that told you that your schedules for surgery for February of '07 were maintained on Medical Manager? A. I don't know that they told me specifically schedules for surgery. It was schedules for patients in general were all maintained on Medical Manager. Q. And who told you that? A. I believe it was Beth. Q. Beth Allen? A. Yes. Q. So if I understand correctly, we have covered 32

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everything regarding the existence of any calendars in any format that were maintained either personally, professionally or any other capacity for February of '07, correct? MR. DEUPREY: That is ambiguous, assumes facts not in evidence. Go ahead and try to respond. BY MS. MULLIGAN: Q. Are there any other types of calendars that were maintained in any form whatsoever for any purpose whatsoever regarding you in February of '07 that we haven't talked about? A. I don't think so. Q. Good. You're the Chargers -- how do you identify it? I don't mean to be disrespectful -- Chargers head team physician; did I get it right? A. Sure. Q. And you were that in February of '07? A. Yes. Q. Did you go to games? A. No. Q. Never? You'd think that would be a perk. You didn't have the responsibility of being in attendance at games at all? 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fan.

A. I didn't say that. Q. Okay. I'm sorry. Where did I get it wrong? A. You asked if I went to games and I said no. Q. So you were present, but you weren't there for watching the game. Is that what you mean by distinguishing it? A. To help you out, there are no games in February of '07. Q. Okay. See, you could tell I'm not a football

In general, though, when there were games you were present? A. Yes. Q. How did you know where to go and when to go? A. A combination of public knowledge. I think anyone involved with the team or even as a fan probably knows week to week where the Chargers are playing, and that should have been an entry in my palm-type device as well. Q. How about bowl games -- b-o-w-l -- or charity events or anything else that the Chargers may have engaged in; is it your custom and practice to ever be present at such events? A. Sometimes. Q. Were there any in February of '07? 34

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A. Not that I specifically recall. Q. And if they were, that would have been information that was contained in your palm-pilot-type device? A. Typically, yes. Q. How about rugby -- I'll show you how little I know about almost every sport. Is rugby played in February of '07? A. Yes. Q. As a matter of fact, I see on your C.V., Exhibit 2, that it says on Page 2, medical director, International Rugby Board Sevens Tour, 16 Nation, February 2007. Did I get that right? A. I think so. Q. What is that? A. It's a -- IRB is International Rugby Board. It's the international governing body for rugby, and they sanction a -- I don't know if it's an eight nation or ten nation or seven nation -- some tour of the world and San Diego is now one of their stops. Q. Cool. Did you participate in any of the meetings for the International Rugby Board Sevens Tour in February 2007? 35

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A. Yes. Q. When in February was that? A. It was in early February. Q. Was it on either February 9th or 10th? A. I believe it was that weekend. Q. Where was it? A. In San Diego. Q. On the evening of February 9th, say, around midnight, were you in San Diego? A. I believe so. Q. Did you ever tell anybody that you were in Los Angeles on the evening of February 9th or the morning of February 10th? MR. DEUPREY: You are not to refer to any conversations with counsel in answering any questions, but insofar as the question calls for you to respond as to non-attorney conversations, you can respond. BY MS. MULLIGAN: Q. I'm going to repeat the question, and your attorney's objection is noted. Did you ever tell anybody that you were in Los Angeles on February 9th or February 10th? A. I think I did. Q. Were you in fact ever in Los Angeles on February 9th or February 10th? 36

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MR. DEUPREY: You know, you keep saying the 9th and the 10th, Counsel, and I would just ask to have a continuing objection as compound. And he's certainly free to explain when he was in L.A. or not if you want to get to the heart of it. BY MS. MULLIGAN: Q. Were you ever in Los Angeles at any time on February 9th? A. I don't think so. Q. Were you ever in Los Angeles at any time on February 10th? A. Yes. Q. When? A. Late at night and early in the morning, I guess. Q. Okay. I'm going to assume that we have a common understanding of a clock and time, but -- I don't mean to be sarcastic with you, but I just want to make sure we are on the same wavelength. So at 11:59 on February 9th, we would agree that that is still February 9th, correct? A. Okay. Q. When midnight occurs, is that now February 10th in your mind? A. We can define it that way, sure. Q. Okay. So from any time after 11:59 on the 37

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evening of February 9th through to midnight the following 24 hours later, were you in Los Angeles? MR. DEUPREY: By Los Angeles you mean sometime north of the L.A. county line. MS. MULLIGAN: Yes, sir. THE WITNESS: Repeat the question again so I get the exact time. BY MS. MULLIGAN: Q. That is fine. Any time after 11:59 on the evening of February 9th until 24 hours later -- 11:59 on the evening of February 10 -- were you ever in Los Angeles? A. Yes. Q. About what time did you arrive in Los Angeles? A. I'm not sure specifically. Q. Can you give me an estimate? A. In the early morning hours. Q. So sometime after midnight on February 9th? A. Yes. Q. How did you get to Los Angeles? A. I drove. Q. With whom did you drive? A. By myself. Q. Where did you go? A. I was heading to my mom's house. 38

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Q. What is your mom's name? A. Betty. Q. I assume the last name is the same as yours? A. Yes. Q. Where does your mom live? A. In L.A. Q. Can you tell me what part of L.A.? A. West side. Q. Can you tell me the closest intersection? A. Closest intersection? I guess you want a big one, so Benedict Canyon and Mulholland. MR. DEUPREY: The question assumes facts not in evidence as to whether he ever actually made it to his mother's house. MS. MULLIGAN: We will get there. MR. DEUPREY: Okay. BY MS. MULLIGAN: Q. So if I understand correctly, then, earlier in the evening of February 9th you were present at the International Rugby Board Sevens Tour, 16 Nation. And according to your C.V. that was at Petco Park? MR. DEUPREY: He didn't say that. MS. MULLIGAN: Well, that's the question. MR. DEUPREY: All right. 39

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BY MS. MULLIGAN: Q. Were you present there? MR. DEUPREY: On February 9th she's asking -THE WITNESS: Repeat the question again. BY MS. MULLIGAN: Q. Sure. At any time on February 9th were you at the International Rugby Board Sevens Tour, 16 Nation, at Petco Park? A. I might have gone by there, but specifically there were no games at that point in time, to my recollection. Q. I'm sorry. I didn't mean to interrupt you. Did you meet with anybody that was involved in the International Rugby Board Sevens Tour anywhere at any time on February 9th? A. I don't remember specifically. I know that there were some meetings that week. There were some meetings that led up to the events, and it's my recollection that the games were on Saturday and Sunday, and that -- I'm not sure if there was much going on that Friday or not. Q. So my question was did you meet with anybody at any time, at any place on February 9th as related to the International Rugby Board Sevens Tour? I don't care if 40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

it was game or social event or a meeting or an exam that you were doing of a player. Did you meet with anybody for any reason from that rugby tour at any time on February 9th? A. I don't know for sure. I know there were a number of meetings from some rugby officials to medical staff that led up to it. I don't recall specifically if it was Friday or Thursday or Wednesday. I know there were several things in the week leading up. Q. Now, what individual or individuals would you meet with? Can you give me names of anybody from that International Rugby Board? A. I don't know that I can give you any names off the top of my head from the International Rugby Board because, A, I don't know them that well and they are usually foreign officials. Q. Other than you, is there anyone else in San Diego that was in any way involved in that International Rugby Board Sevens Tour, whether or not they were technically on the board? A. Involved with the tournament in general? Q. Yes, sir. A. Sure. Q. Who is that? A. Ed Ayub. 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 name.

Q. How do you spell his last name? A. A-y-u-b. Q. Anyone else? A. Ed was sort of the right-hand guy assisting with the medical stuff, so he would have had involvement. Q. Does Mr. Ayub reside in San Diego County? A. Yes. Q. And what does he do when he's not involved with international rugby, unless that's his full-time job? Is it? A. No. He does spend time on it, but he's a physical therapist. Q. Where does he work? A. In San Diego. Q. Is he a personal friend of yours? A. I've had a long association with him. I would like to call him a friend. Q. Okay. A. But we don't socialize much together at all. Q. What physical therapy company does he work with? A. I don't know the exact name, but it bears his

Q. Okay. Is there anyone else you can identify that was involved in any capacity in this International Ruby Tour? 42

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A. I don't recall any of the other board members. Q. So as you sit here today, you don't have any specific recollection of any meetings of any nature that you had any time on February 9th with anybody from the International Rugby Tour; is that your testimony? A. That's not what I said. Q. I'm sorry. What do you recall? A. I recall that during that week that there were a number of different meetings. I went to the hotel a number of times for medical and other purposes. There were a number of different functions, meetings, that led up to that event, and I don't recall specifically which ones were specifically on February 9th versus the 8th versus the 7th. Q. Would all the meetings that you attended of any nature have been maintained in that palm-pilot-type device we discussed earlier? A. I think some of them would have been, but certainly not all of them. Q. Are there any other places that you are aware of that would contain such information? Files, brochures, memos, anything at all? A. As sophisticated and difficult as the International Rugby Board sounds -- and it is a professional body -- this was a first-time San Diego 43

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event, and I recall in general that there was -- Dr. Chao, can you come by this meeting at this time. And it would be essentially a mental note, yeah, sure I can. Anything that was officially scheduled was indeed officially scheduled through my secretary and then would have been entered into the device. Anything that I agreed to when they called me directly, I typically don't always know how to officially enter it in and certainly sync everything up. Q. Were any of these meetings arranged through e-mail? MR. DEUPREY: Arranged by e-mail? MS. MULLIGAN: Yeah. Q. Did somebody send you an e-mail saying Dr. Chao can you come to X or Y, and you respond? A. There might have been. I'm not sure. There might have been. Q. Now, you mentioned a hotel; that you may have gone by the hotel for meetings and other purposes. What hotel are you talking about? A. There was a host hotel in Mission Valley. Q. Which hotel? A. It was -- it was a main hotel. I mean I don't remember if it was the Hyatt or the Hilton. It was big hotel. It was a name that we would all recognize in the 44

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heart of Mission Valley. Q. Did you ever stay there overnight during this international rugby visit? A. No. Q. You said for meetings and other purposes you would go there. What kinds of other purposes were there that you would go to the hotel during this International Rugby Sevens Tour? A. Medical clinics, checks, seeing patients. Q. The patients being the rugby players or employees? A. Yes. Q. Did you go to any cocktail parties or receptions? A. I think there was a meeting -- a general meeting were there was -- were a lot of people but there was some sort of reception involved. Q. Did you attend it? A. There was one meeting -- a bigger meeting that I went to, but I know I didn't stay for all of it. Q. So you went to part of the reception, correct? A. Reception meeting. Q. And was that on the evening of Friday the 9th, if you recall? A. My best estimate is it was earlier in the week. 45

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9th?

Q. Was there any kind of a dinner that you recall on the evening of the 9th? A. There was -- there wasn't any sit-down dinner of any type that I remember, but I remember being invited to -- and going to -- going to some sort of thing where you met some of the International Rugby Board members in a formal fashion, etcetera. I don't remember if that was on Thursday night or Friday night. Q. Do you recall having dinner on Friday night, the

A. Specifically, I'm not sure. The function I'm talking about did have some sort of heavy apps or pass-around things. Q. That was the reception that -- I think you called it a general meeting that you were present for either on Thursday night or Friday night, correct? A. There were -- I mean I'm trying to just rack my brain and figure out what night it was for sure and searching for context clues. It was probably either Thursday or Friday. I would imagine it wasn't something on Monday, although there was certainly an organizational meeting on Monday or Tuesday. Q. So this International Rugby Sevens Tour went through the weekend of February 9th and 10th? 46

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A. Pretty much it was an event that was on the weekend. Q. Do you recall anything that you did at any time after you left Scripps Hospital on the evening of the 9th and before you started driving up to Los Angeles? MR. DEUPREY: That assumes he left Scripps Hospital on the evening of the 9th. Assumes facts not in evidence. MS. MULLIGAN: Whenever you left the hospital. THE WITNESS: Repeat the question again. BY MS. MULLIGAN: Q. Sure. From the time that you left Scripps Hospital -whenever it was on February 9th -- until the time you got in your car and were driving north towards L.A., what did you do? A. I believe after I left Scripps I believe I went to my office and saw patients. Q. About what time did you leave the hospital? A. I don't recall specifically. Q. Do you recall if you did any surgeries other than Mr. Fagan's that day? A. Specifically, no, but typically, I do do surgeries. Q. Mr. Durfee told us that your calendar was such 47

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that you would typically do all surgeries at one hospital on a given day rather than go from hospital to hospital. Did I state that generally correct? A. That would be our general goal, yes. Q. Do you have any reason to believe that you performed any surgeries of any type anywhere other than at Scripps Hospital on February 9th? A. I may have, because typically Friday is a popular day for surgery. Q. And are you aware of any records that exist, either in electronic format, computer entry, paper or anything else, that would reflect what surgeries you did or what patients you saw on February 9th, 2007? A. We talked about Medical Manager at my office being a mechanism to track the appointments. And I was told by and through Beth that for some reason the Medical Manager -- A, we don't use it anymore, and, B, it's not readily retrievable. Q. So the question is are you aware of anything that exists that shows what patients you saw or what surgeries you performed on February 9th? MR. DEUPREY: You're talking about records in his office or personal records or -- as opposed to hospital records? MS. MULLIGAN: Anywhere, because he's now told 48

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

me that they may even be at more than one hospital. Q. If I understood your testimony correctly; is that right, Doctor? MR. DEUPREY: Well, you can try to respond to that, Doctor. THE WITNESS: Repeat the question again. MS. MULLIGAN: Sure. I'll have her read it back. (The record was read.) BY MS. MULLIGAN: Q. So, Doctor, are you aware of anything in any format whatsoever that exists that will identify all the surgeries you did and all the patients you saw on February 9th of 2007? MR. DEUPREY: Ambiguous. Go ahead and try to respond. THE WITNESS: I was informed by Beth when she told me that she doesn't have access to any of those records, and I asked can you get it, and she says the Medical Manager won't give it to her. Perhaps there is a way to try and hire a company to try and retrieve records off of old computer systems. And she did say that it was potentially possible to recreate a new record based off of auxiliary material in the office as in billing records and what have you. 49

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BY MS. MULLIGAN: Q. By auxiliary records you mean billing records? A. Yes. Q. So your own personal recollection is that you went from Scripps Hospital back to the office? MR. DEUPREY: If you remember, Doctor. THE WITNESS: I don't remember specifically day to day what the schedule was a year and a half ago; however, normally I would do surgeries in the morning on Friday and office in the afternoon on Friday. So it's my assumption that I was at the office in the afternoon. BY MS. MULLIGAN: Q. Do you recall what you did after you left your office on February 9th? A. Specifically, no. It's certainly entirely possible that I went by -- we had a standing, you know, early evening deal if there was anyone that needed to be seen for the rugby players. I don't remember the specific days that I went down there. That happened the whole week. I could have gone by there. Typically I would go home and work out and grab dinner. And it's quite possible, as we have indicated, there were some sort of rugby something Thursday or Friday evening. Q. When you cared for any of the rugby players, 50

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would you keep chart notes or any type of memorialization of that? A. If there was something that I was going to do more active than an initial exam and rendering advice or treatment, then typically I may try and dictate something. Q. You mentioned that your custom and practice may have been to go home. Do you live alone? A. Yes. Q. You have mentioned that you were driving towards L.A. in the early hours. That was sometime after midnight on the evening of the 9th; is that correct? A. I don't remember the specific time, but yes. Q. Can you give me your best estimate as to what time you -- excuse me. I'm making an assumption I shouldn't make. Is it your recollection that you went from your home to driving north towards Los Angeles, or do you recall anything else or any other place you were at any time that evening? MR. DEUPREY: Ambiguous. Go ahead and try to respond. THE WITNESS: I know I definitely left from my house to go. I wouldn't have not go home to change or other things before a drive. I'm not a big fan of 51

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driving, quite honestly, so I know I left from my house. BY MS. MULLIGAN: Q. Other than your home, the hotel in Mission Valley where the International Rugby Board Sevens Tour had meetings, Scripps Hospital and your office, do you recall anywhere else that you were at any time on February 9th? MR. DEUPREY: Where he might possibly have been? He hasn't testified he definitely was at the hotel, but go ahead, Doctor, and try to answer the question the best way you can. THE WITNESS: Well, I don't -- I mean you're asking me for a specific Friday a year and a half ago. MS. MULLIGAN: Yes. THE WITNESS: Certainly I think we all remember things that stand out in life, but I don't know what -when I think about it, what I did last month on Friday for sure unless there was something special. I think I have testified to the fact that there may have been -- and I don't want to say yes for sure and then say no, it was on Thursday or say no for sure and it was on Friday -- but there was some rugby something that I went to in the early evening hours on one of those days that I would recall, but I can't for sure pin it to February 9th. 52

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BY MS. MULLIGAN: Q. Do you recall anywhere else you were on February 9th other than what we have discussed? A. I can't think of any right now. Q. I understand there was an ACSM -- American College of Sports Medicine -- conference in San Diego that weekend. Are you member of ACSM? A. No. Q. So am I right in assuming that you weren't at any of their conferences on the weekend of February 9th or 10th? A. I am not a formal member of ACSM. I have been asked to lecture for them and do some tasks for them, but I'm not an official member. I don't specifically recall in that meeting. I know I have participated in ACSM meetings in the past in San Diego. And I remember participating in one at the Torrey Pines -- is it a Marriott or Hilton? I don't remember, but I remember it being over by Torrey Pines Golf Course. But I don't remember the time course and I don't remember if it was this particular time. Q. Can you give us your best estimate as to approximately what time you left your house on the evening of February 9th with the intent of driving to Los Angeles? 53

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A. It was late at night. It was something that I thought about doing earlier in the day, because my mom wasn't feeling that well. And in any case I had given some thought about going up earlier in the evening, decided not to because I hate driving in traffic, and it was later that night that I decided, well, if I were to go up now and not miss sleeping, and I'm kind of worried about her, there isn't going to be much traffic. And then I could go up and at least see her in the morning and zip right back down to my other commitments. Q. Can you give me an estimate as to approximately what time you left your home with the intent of driving to Los Angeles? A. As a guess, I'd say midnight-ish. Q. Now, Doctor, you have been deposed two dozen times before. I assume you know the difference in the law between a guess and an estimate. Do you need me to define those for you? A. Sure. Remind me. Q. Sure. No problem. The word "guess" usually means you're speculating; there is no foundation upon which you could base the answer. So if someone were to ask you how long the conference table is in my office, assuming you hadn't been there and no one else that you had communicated with 54

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had told you about it, it would be shear speculation or guesswork for you to give any answer whatsoever. However, distinguish that, if you will, from an estimate. If somebody were to ask you the length of the conference table in this room, while you may not know the precise dimension, if you had a range of information that you were comfortable with, that would be an estimate. When you use the term "guess" when you were describing about what time you let for Los Angeles, I don't know if you were using it in the common vernacular which may mean that's your best estimate or if you meant it's shear speculation and you have no clue. So can you give me any estimate whatsoever as to the time you left your home with the intent of driving to Los Angeles? A. It was late at night or early in the morning. It would be at a time that I would normally be in bed. And I'm I just proposing midnight as a general answer. Q. What time did you receive the first phone call from Mr. Durfee regarding Mr. Fagan? MR. DEUPREY: By phone call are you including text messages? MS. MULLIGAN: Yes. Thank you, Mr. Deuprey. MR. DEUPREY: Just indicate what you're referring to in responding so the record is clear. 55

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THE WITNESS: I'm looking at a compilation sheet with times on it that was given to me by my attorney that was prepared by A.J. Durfee. And it looks like on here 12:21. BY MS. MULLIGAN: Q. At 12:21 you received a text from Mr. Durfee, correct? A. Yes. Q. Where were you at the time you received that initial text? MR. McCABE: This is a.m.? MS. MULLIGAN: Yes, sir. It's about 21 minutes after midnight. THE WITNESS: In my car. BY MS. MULLIGAN: Q. What county were you in? A. I'm not sure, but I would guess not L.A. Q. Now, if your best estimate was that you left your home at about midnight, am I correct in assuming that you were still within San Diego County at 12:21 when you received the first text? MR. DEUPREY: That calls for deduction and speculation and inference about which he's not sure. Object to it. It assumes facts not in evidence, calls for speculation. 56

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I was in.

Just do the best you can, Doctor. THE WITNESS: I don't know for sure which county

BY MS. MULLIGAN: Q. Did you receive and read this text while you were driving or did you pull over and read it? A. I believe while driving. Q. While you were driving down the freeway you were reading the text; is that your testimony? A. Maybe, yeah. Q. Now, I know that there is ear pieces that help people talk when you're on the phone, but at least as far as I know when you're reading text you are actually looking at that little screen. Is that how you read your text messages? A. Typically I read by looking. Q. Did you pull over onto the side of the road when you responded to Mr. Durfee's initial text, or did you do that while driving, too? A. I may have done it while driving. Q. Is there a reason you just didn't talk to Mr. Durfee when you received his initial text? A. I think it was my natural response that if he texted me, that I would respond in the same fashion. I didn't give it much thought, I don't think. It's just 57

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whatever is most convenient. Perhaps somewhere in my mind there was a thought that it is kind of late at night; I know he's got a wife and a baby, and do I really want to call and wake people up. And he texted me for a reason, so I texted him. Q. According to the text messages Mr. Durfee gave us, you never texted him and said please call me; is that correct? Because certainly that would have taken care of the problem with his wife and his baby being awake. MR. DEUPREY: That's argumentative and compound. BY MS. MULLIGAN: Q. Did you ever text him and ask him to call you? A. I don't recall doing that. Q. Is it your testimony that each of these text messages were received by you while you were driving on the freeway? A. Being that I'm putting together some general statements and recollections and clearly referring to this piece of paper to narrow down to 12:21, I don't remember all of the specific circumstances, but in general I was driving. Q. You live in La Jolla, correct? A. Yes. Q. So approximately how long does it generally take you to get from your home in La Jolla to your mother's 58

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home on the west side of L.A. assuming no traffic? A. Approximately two and a half hours. Q. And am I correct in assuming there was no traffic on the evening of February 9th and the morning of February 10th? A. I don't recall specifically, but I don't recall there being any big traffic jam. Q. From the time you received the first text message at 12:21 until the time you received the last text message at 2:42, is it your recollection that you were in your car the entire time? A. I don't recall where I was at when I received the last text message, because there were more communications than just this between me and other people. Q. And we will be going through those. How about the second to the last text message at 2:41; Mr. Durfee said you texted him, do not need him; I have it covered; go to bed, thanks. Did you send that text message while you were driving on the freeway? A. I don't recall specifically, because as I was dealing with this and driving and talking to other physicians, and even after I stopped my text with A.J., the happenings of the evening did not stop for me, so I 59

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don't know that I made mental note of where I was when texting stopped or started. Q. Did you ever reach your mother's home that evening or that early morning? A. Yes. Q. About what time? A. It was late. Q. Give me an estimate. A. Assuming I left around midnight, plus or minus, that would put it at 2:30. Q. Do you recall making any stops at any time from when you first got in your vehicle at your home in La Jolla until you arrived at your mother's place on the west side of Los Angeles? A. I don't recall stopping. Q. We will go in detail into this latter, but you mentioned that evening after you stopped communicating with Mr. Durfee that you were still communicating with, quote, "other physicians." I assume one of those physicians is your brother James Chao, correct? A. Yes. Q. There has also been an emergency room physician identified as Dr. Morikado, M-o-r-i-k-a-d-o. You spoke with her? MR. DEUPREY: Just -- your question, though, now 60

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is getting a little ambiguous as to the time frames that he spoke to these physicians. BY MS. MULLIGAN: Q. Anybody you spoke with on the evening of the 9th, morning of the 10th while -- from the time you received the first text from A.J. Durfee while you were still in Los Angeles at your mom's house. In other words, before you got back into San Diego. Do you understand the time frame? MR. DEUPREY: So it's any -- the time frame is before he got back to San Diego after traveling up north? MS. MULLIGAN: Yes, sir. THE WITNESS: After I traveled or during? MS. MULLIGAN: Any. THE WITNESS: Any inclusive? MS. MULLIGAN: Yes, sir. THE WITNESS: Okay. The question is? BY MS. MULLIGAN: Q. Identify all the physicians with whom you communicated. A. I spoke with Dr. -- this is in no order -Q. Sure. A. -- but I spoke with Dr. James Chao; I spoke with Dr. Morikado; I spoke with Dr. Sanzone. Q. Can you spell that name, please? 61

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A. S-a-n-z-o-n-e. Q. What is Dr. Sanzone's first name? A. Tony. Q. Thank you. Any others? A. I spoke to one other physician and I'm pretty sure it was Dr. David. It could have been Dr. King. Q. Dr. Tal David, T-a-l? A. Yes. Q. And what is Dr. King's first name? A. Byron. Q. Dr. Byron King. And you're not sure between Dr. Tal David or Dr. Byron King -A. It would typically be my first phone calls. And I know I spoke to one of them and I'm not sure which one it was, but I didn't have a very lengthy conversation. Q. Who is Dr. Tony Sanzone? A. He's an orthopedic trauma specialist. Q. Is he part of Oasis or has he ever been? A. No. Q. What is his relationship to you, if any? A. A colleague. Q. Is there a reason you called him rather than any other orthopedic specialist? 62

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MR. DEUPREY: Well, he didn't say that. He didn't say he didn't call any other orthopedic specialist. MS. MULLIGAN: Oh, I'm sorry. Q. Did you call anybody else that we haven't yet identified? MR. DEUPREY: No, no. That is a different question. He said before he's pretty sure he talked to Dr. David. He knows he talked to another orthopedist; it could have been King. Then you asked him who is Sanzone, and he said an orthopedic trauma specialist. So I don't want to interrupt, but -MS. MULLIGAN: That's okay. Doctor, do you need a break? THE WITNESS: If you don't mind. MS. MULLIGAN: Not al all. Go right ahead. THE WITNESS: I didn't get coverage for this. People know I'm in town. MR. DEUPREY: Just be sure to take your microphone off. VIDEOGRAPHER: Off the record at 10:54. (Recess taken.) VIDEOGRAPHER: Back on the record at 11:12. BY MS. MULLIGAN: Q. Doctor, I'm torn between respecting your mom's 63

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right of privacy and fear of being sandbagged at arbitration or trial, so let me ask you a few questions and we'll see how you and your attorney want to handle it. You talk about your mom not feeling well. Were you going there to treat her medically as a doctor? A. I was primarily going up there as a son that feels guilty that I haven't seen her very often and that she was alone and not feeling well. Certainly if there was something that came up that I could treat, I probably would try and step in, yes. Q. Again, along those same lines, the question was it something that you feared was a serious life-threatening illness, or is it more the guilt of being the dutiful son that wanted to see the mother or something else? A. Well, without being overly mellow-dramatic, my mom is not the kind of person that if it really were bad to say that it's really bad. She's always going to say, as an immigrant, her personality and whatever, she's going to say no, I'm fine; I know you're busy. And I wasn't -- I'm not suggesting that I was speeding up there to save her life in any way, shape or form, but I'm not sure where she was. My assumption was that she just wasn't feeling that well and there was nothing to take 64

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her to the emergency room for or anything else, but perhaps my peace of mind would be better having just seen her. Q. Your mom lived alone? A. She was alone at the time. Q. I'm sorry. I don't understand. Did she live alone? A. Can we take a minute? MR. DEUPREY: Well, you really need to get into this sort of personal information, seriously? MS. MULLIGAN: Well, again, I'm torn between how much is going to come up later, and if she didn't live alone and there is somebody else that's going to come in as a witness one way or the other, now would be a good time to know it. So I apologize. MR. DEUPREY: I think he's said that she was alone at the time, so doesn't that eliminate your concern about some other witness coming in? BY MS. MULLIGAN: Q. At any time while you were with your mother on the 9th or 10th -- I guess it was more the 10th -- did anyone else come to her home? A. Did anyone else what? Q. Come to your her home. A. No. 65

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Q. And you were alone when you drove up there, correct? A. Correct. Q. Now, your brother is also a physician. Do you have other siblings? A. No. Q. So it's just the two of you? A. Correct. Q. Had your brother seen your mother within -- I don't know -- three or four days prior to this drive you took on the night of the 9th and 10th? A. I don't think so, and I would doubt it. Q. Now, did you expect your mom was going to be awake when you arrived at her home that early morning? A. No. Q. And what, if anything, did you have to do in San Diego the day of the 10th? A. I needed to be back to serve my function for the rugby event that we talked about. Q. And what time were you scheduled to begin any meetings or rounds with patients or anything else? A. I think I had a drop dead of close to 10:00 o'clock. Q. By drop dead, what do you mean by that? A. Well, I mean, you know, the earlier I got there, 66

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perhaps the better. I was really targeting essentially 10:00 o'clock. There were other physicians involved, but I felt like I needed to be there by 10:00 approximately. Q. And where were you going to be at 10:00? A. At the rugby event. Q. And where was that going to be? A. Downtown. Q. At Petco Park? A. Yes. Q. And did you have the intent that you were going to do rounds at the hospital before that rugby event or anything else? A. At what point in time? Q. At any time on that Saturday, February 10th. A. Well, my intent and custom and practice would be to round as necessary, whether it's in the morning, in the afternoon or both. Q. You had staff privileges at several hospitals in February of '07, correct? A. Yes. Q. Which hospitals? A. I believe obviously Scripps Memorial, Scripps Mercy, UCSD Thornton. Q. Anything else? A. I think Continental. 67

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Q. Did you have an intent to do rounds at all four hospitals on the 10th? A. No. Q. Which hospitals did you have an intent to do rounds at? A. Wherever necessary, but really the only one was Scripps Memorial. Q. And with respect to the rugby event, you told me the drop dead time, if you would, was to be there by 10:00 o'clock in the morning, correct? A. That was my target, yes. Q. What was the time commitment that day with respect to your involvement with rugby? A. I believe there were matches through approximately late afternoon or 6:00 o'clock. Q. 6:00 p.m.? A. I believe so. Q. So you were going to do rounds after 6:00 p.m.? A. Before and/or after, depending on the circumstances. Q. So when you drove up to L.A., I believe you told me you got there -- I don't want to put words in your mouth -- but about 2:40 in the morning, something like that? MR. DEUPREY: Well, it's been asked and answered 68

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and calls for speculation in light of his previous answer. BY MS. MULLIGAN: Q. Let's do it this way: You said your best estimate that you left Los Angeles -- excuse me -- left San Diego about 2:00 o'clock, and without traffic it would typically take you two and a half hours to get to your mom's house, correct? MR. DEUPREY: I think you misspoke. MS. MULLIGAN: Oh, I'm sorry. Where did I get it wrong? MR. DEUPREY: I think you said he left San Diego at 2:00 o'clock in your question. MS. MULLIGAN: Let's start over again. I apologize if I'm confusing the issue. Q. Doctor, I believe you told me your best estimate was you left San Diego approximately midnight on the 9th; is that correct? A. Approximately, with a plus or minus factor. Q. And typically without traffic it would take you two and a half hours to get to your mother's home? A. I think that's about right. Q. So if your best estimate as to your departure time was at midnight, then your best estimate as to the time you likely arrived at your mom's home is about 2:30 69

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in the morning on February 10th? A. Give or take the estimating that we are doing. Q. Now, with respect to returning to San Diego the next morning, if you had to be in San Diego by 10:00 o'clock -- and I assume you would have expected to it to be a two and a half hour trip back to San Diego? A. Sure. Q. And so can you estimate for me what your intent was in terms of what time you were going to leave San Diego on the morning of the 10th? A. My mom is usually an early riser. My intent was just see her in the morning and say hello, offer to take her out to breakfast knowing that she probably wouldn't go and just hang out with her for an hour and then take off. Q. So if I'm doing the math correctly, was it your intent to leave Los Angeles, your mother's home, no later than 7:30 in the morning? A. I think that would be affair intent, or sooner if I -Q. Or even earlier? A. Potentially, yes. Q. Did your mom know you were coming? A. Yes. Q. Was she awake when you in fact arrived? 70

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A. No. Q. I'm going to switch gears, if I may, and go back to some of these documents and subpoenas later. With respect to your own chart before you, I assume that's the Oasis chart? A. Yes. MS. MULLIGAN: Is this the same chart that was produced at Mr. Durfee's deposition? MR. DEUPREY: Yes. In fact I think that rubber band around it is from my office. MS. MULLIGAN: I'm going to save a few tree branches by not making another copy. Q. But, Doctor, you have reviewed that chart, correct? A. Not really. Q. You have not reviewed it to prepare for your deposition? A. I don't think I looked at it much at all. Q. When was the last time you did review it? A. Probably when he was in my office. Q. To the best of your knowledge, based on your recollection, has anything ever been added to that chart that was not contemporaneous with the times and dates of the entries contained in that? A. I'm not aware of anything. 71

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Q. Are you aware of anything that has been removed from that chart at any time? A. No. Q. Are you aware of any changes that were made to that chart at any time? A. No. Q. Now, with respect to the hospital chart, it's voluminous. I'm assuming you haven't reviewed the whole thing to prepare for your deposition? A. That's correct. Q. Good. With respect to the care and treatment you gave to Mr. Fagan, you were his physician from the time he was admitted to Scripps Memorial Hospital on February 9th until his time of discharge, correct? A. I was one of his physicians, yes. Q. While you were his physician, I assume that you have reviewed portions of this chart in order to evaluate and treat him, correct? MR. DEUPREY: She's asking during the treatment time frame. THE WITNESS: During the treatment I would look at relevant portions as needed. BY MS. MULLIGAN: Q. To the best of your knowledge, did you ever notice anything in the chart that looked to you like it 72

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was falsified? MR. DEUPREY: That is ambiguous as to what you mean by, quote, "falsified." BY MS. MULLIGAN: Q. Do you know what I mean, Doctor? MR. DEUPREY: Well, it's still ambiguous. MS. MULLIGAN: That's fine. Your objection is noted. Q. Do you know what I mean by falsified? A. I'm not sure. Q. Well, I've heard the expression before as doctored, but I didn't want any pun intended on the word doctored. When you were treating Mr. Fagan and had access to the Scripps Memorial chart, did you see anything in the chart that looked to you that it had been changed? MR. DEUPREY: Same objection. Ambiguous. THE WITNESS: While I was treating him did I see anything that looked like it was changed? BY MS. MULLIGAN: Q. Yeah. A. I'd have to go back in time course to while I was treating him. I can say I certainly didn't look for anything that was changed. I did note that there were some corrections and/or inconsistencies on at least one 73

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document at the time, but I didn't analyze it. Q. What document are you talking about? A. Immediately -- and I don't recall if it was -- I guess it wouldn't be the 9th. It would be the 10th and/or 11th I remember looking back at the history of how we got here. Q. And what did you -- what document are you talking about that had inconsistencies or corrections in it? A. At that time I noted the corrections in a -- I don't know what you would call it -- a nursing assessment form of some sort. I don't remember the title. Q. If I understand your testimony correctly, on February 10th or 11th you were looking at a document. It's not necessarily a document that was dated the 10th or 11th. Did I get that right? A. Yes. Q. And the document that you're describing is some kind of a nursing assessment that must have been -what -- from the 9th or from the 10th or from the 11th? A. I believe it was from the 9th/10th. Q. Because I don't know what you're talking about, I'm going to show you some stuff and let's see if any of those appear to be the document. 74

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I'm showing you documents that are Bates stamped second image 748, 749 and 750, which are med/surg floor sheets P.M. patient assessment from February 9th and 10th. Is that the document you're talking about? A. This wasn't the specific document I was talking about. Q. Just so we have an identity of what I have given you, I'll mark those pages from second image 748 through 750 as Exhibit 5. Doctor, would you mind putting that sticky on Exhibit 5. (Exhibit 5 marked for identification.) BY MS. MULLIGAN: Q. I see you're kind enough to be going to the stack that you have. Is the document that you're talking about among the documents that we had identified Mr. Deuprey had gathered? A. Yes, I think so. Q. If you don't mind looking there rather than me going through all my books. Thanks. A. I don't know how you want to identify it or -MR. DEUPREY: Just show her which document you're talking about. MS. MULLIGAN: Thank you. 75

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This is an extremity neurovascular assessment record, dated 2/9. It's Bates stamped SMH01883. We will mark this as Exhibit 6. (Exhibit 6 marked for identification.) MS. MULLIGAN: I'm going to pass it around so they know what I'm talking about and that will give me a second to try to find it, too. Q. Let me make sure that yours is the same as mine because we are talking about a document with inconsistencies. First of all, I've just been given two pages and we -- all right. Doctor, what is there on this Exhibit 6, Page 664, that you found either had corrections or inconsistencies? A. At the time I didn't make a big deal out of it, but in going back and looking at the time course of events, there were -- I noted a number of corrections on that sheet. Q. Can you identify for me what you're talking about specifically, please? A. There is a number of cross-outs and other things that are not completely typical on a medical record. Q. I'm going to hand you a yellow highlighter, and I'll ask that the original exhibit has the yellow highlighting and all copies have it. 76

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Just so we have a common understanding, would you highlight in yellow what you're talking about and then describe it for us when you are done. A. Okay. Q. May I see what you have highlighted, please? A. (Witness complies.) Q. Thank you. For the record, there is a yellow line through the time entry at 20, because I believe in the original it had a black line through it, correct, Doctor? Or it had a line through it, whatever color? A. Sure. Q. You have also highlighted in yellow the entry under skin temperature at 1800, correct? A. Yes. Q. You have highlighted in yellow the entry for motor function at both 1800 and 2000, correct? A. Okay. Q. And you have highlighted the entry under skin temperature at 1800 and then again at 2000, correct? A. Okay, but although the 2000 would be already covered in your previous highlight. Q. Okay. And I'm sorry. What was there about these that you thought was unusual? A. Usually these are things that nurses do 77

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contemporaneously at the bedside, and I thought it was a little unusual that there were a number of cross-outs and/or changes. Q. Did you talk to anybody about this observation other than perhaps your attorney? A. At one point I believe I spoke to a physician in the intensive care unit as we were piecing together the time course. Q. Who was that physician? A. I don't remember specifically because there were a number of hospitalists and intensive care specialists. I believe it probably was the main guy. I'm blanking on his name right now. I'm embarrassed because he was quite helpful and I like him and I should remember his name. Q. I'm going to ask to a leave a blank in the record, and if the name comes to you at any point in time, and if it's okay with your attorney I'd like you to fill that in. Is that okay with you, Mr. Deuprey? MR. DEUPREY: That's fine. (Information requested: BY MS. MULLIGAN: Q. Was this one of Mr. Fagan's treating physicians? A. Yes. Q. And approximately what date did this meeting 78 )

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take place? MR. DEUPREY: He didn't say it was a meeting, but there was a conversation or a comment. But go ahead, Doctor, and try to respond. THE WITNESS: In general there was a point in time -- whether it was on the 10th or 11th, most likely one of those two dates. I suppose it's possible it was on the 12th, but it was in relative proximity to the 9th -- that I was going back to look at some records to try and piece together how we got here. And this was in the intensive care unit, and one of the physicians that essentially, for lack of a better word, resides in the intensive care unit -- obviously not physically, but that's -- they are the intensive care unit doctor -- was floating around there, and I believe we looked at some things in the chart including this piece of paper. Q. And while you may not recall the exact words that were used, can you tell me more or less the sum and substance of this discussion first regarding this piece of paper? A. As far as this piece of paper, I think I certainly noted and I think it was noted that there certainly were some changes on here and that it -- what relevance it had to the care of the patient I don't think either one of us were sure of at that point in time. 79

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Q. Can you tell me more of the substance about what relevance it had in terms of your discussion? A. One of the things was in trying to piece together Mr. Fagan's medical condition and how we might treat him in the future. Q. And with regards to that, what were the comments that were made with respect to this Exhibit 6? A. In general I was trying to piece together the -based on his chart, the time and timing of his ischemia in his leg. Q. And you were doing this so that you could better care for Mr. Fagan, correct? A. Correct. Q. So can you tell me what conclusions you reached regarding the timing of the course of Mr. Fagan's ischemia? I think you used the word "ischemia," did you not? A. Yes. Q. Okay. Could you tell me what you pieced together at that time regarding Mr. Fagan's course of ischemia? A. Based on looking at this record, it was unclear to me when his ischemia may have indeed started, but there certainly were some signs of it starting well before midnight. 80

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Q. Where do you see the first indication of signs of ischemia? At what time? A. Perhaps the first one is at 1800. Q. And what are you looking at that shows you signs of ischemia at 1800? A. Just any signs of change. At 1800, as you pointed out, there is a change in the right lower extremity skin temperature. Q. Can you tell me what that change is? A. I don't know that I can, but if you want me to interpret the record -Q. Yeah. That's what I'm asking you to do because I'm assuming that's what you were doing at the time you were having this discussion in the ICU, correct? A. Well, I don't know that our discussion was what does it mean, Doctor, there is four, a line through it and now a two. It was how long perhaps was he ischemic; here's a record of it and what does this bode in the future and how do we treat him. So we certainly weren't -- and I certainly wasn't attempting a -- for lack of a better word -forensic evaluation of the record. Q. That's not my question. A. Okay. Q. You were trying to put together the sequence of 81

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events and the timing of the ischemia, correct? A. Yes. Q. And along those lines, it sounds as though the first evidence you were aware of that there was ischemia was at 1800? MR. DEUPREY: From this record. MS. MULLIGAN: From this record. THE WITNESS: From this record this would be the first potential sign. BY MS. MULLIGAN: Q. And there were no other records that showed potential signs of ischemia prior to 1800 that you are aware of? MR. DEUPREY: At that time? Because we are still at the point in the hospital. MS. MULLIGAN: Correct. THE WITNESS: Yes. BY MS. MULLIGAN: Q. At any point in time did you become aware of other signs of ischemia that occurred before 1800? MR. DEUPREY: You mean up until today? MS. MULLIGAN: Yes. MR. DEUPREY: You are not to discuss any conversations you had with me, but if you reviewed these records, Doctor, you can respond the best that you can. 82

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THE WITNESS: To the best of my recollection, perhaps the earliest sign was 1800. BY MS. MULLIGAN: Q. Okay. Other than this document, Exhibit 6, as you sit here today are you aware of any other documents in the chart which showed that he was having signs of ischemia as early as 1800? A. I can't say that I've done a comprehensive review, certainly not of those charts and even these 60 pages. I would be -- it would be a misrepresentation to say that I've looked at every line and every page. Q. Understood. So as you sit here today your awareness of the first signs of ischemia at 1800 is based upon the entries on Exhibit 6? A. I -- yes. And more specifically your line of questioning was in the course of treating him I do remember this form in general and was reminded of this form when I reviewed the records again. Q. Okay. So in terms of seeing that there are signs of ischemia, it sounds as though one of the things you as a physician look for is a change in at least skin temperature; is that correct? A. You're saying it's one of the things we might look for -Q. Yes, sir. 83

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fair.

A. -- as a sign? I think -- yeah, I think that's

Q. Okay. So as you were in the intensive care unit trying to piece things together, what was there at 1800 in the skin temperature that was consistent with Mr. Fagan having ischemia? A. I'm not suggesting that one isolated skin temperature change is indicating or conclusive to the diagnosis of ischemia, but it's pretty evident here on the form that there was a change, and not only in terms of the number that's recorded in terms of the skin temperature, but in the physical number that was written and crossed out. Q. By this do you mean that if Mr. Fagan's skin temperature was rated at a four at 9:00 o'clock on the 9th and was rated at a two at 1800 on the 9th, that that is consistent with a physical change in his condition that is a sign of ischemia? MR. DEUPREY: Ambiguous. Go ahead and try to respond. THE WITNESS: So -- long question, but I think I would say that -- I'll modify it by saying that any change in skin temperature that is significant could be one of the signs of ischemia. I'm not suggesting that based off of one skin temperature being cool that the 84

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diagnosis is made. BY MS. MULLIGAN: Q. Was there anything else about Mr. Fagan's condition at 1800 that was consistent with ischemia other than skin temperature? A. Well, according to this piece of paper, potentially a decrease in motor function. Q. At 1800? A. Yes. Q. So if his motor function went from four at 9:00 a.m. to a three at 1800, in your mind that factor is one of the things that would be consistent with somebody having ischemia? Not the only factor, but -A. Correct. Certainly not the only factor, and clearly when we treat patients we take them as a whole and we don't use one isolated value or finding. Typically we don't do that and jump to major conclusions unless it's just that major piece of evidence. These are auxiliary pieces of evidence that also have other explanations potentially. Q. Was there anything else that you're aware of that was consistent with Mr. Fagan showing signs of ischemia as early as 1800? A. With what I said previously and my review and stuff, I don't think so. 85

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Q. Now, as you and the ICU physician were piecing together a time course, other than the fact that you came up with an opinion that Mr. Fagan was showing signs consistent with ischemia at 1800, were there any other things that you came up with in this time sequence? A. Yes. Q. What? A. And as I answer, I obviously can only answer for myself. I referred to another physician that it was brought up, but certainly I don't know his conclusions, but I thought it was different that an entire line was crossed off for an 8:00 o'clock -- or -- sorry -- 2000 hour reading, and essentially there would be no entry at 2000. Q. Do you know who made any of these changes that you have highlighted on our Exhibit 6? MR. DEUPREY: Well, do you know? There is a signature on the -- what do you mean do you know? MS. MULLIGAN: I mean do you know who made these changes. MR. DEUPREY: Well. It's ambiguous. Go ahead and try to respond. THE WITNESS: Do I personally know? No. BY MS. MULLIGAN: Q. Other than speaking with the hospitalist in ICU 86

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on that single occasion, did you talk to anybody else at any time about these perceived changes to the document? MR. DEUPREY: Again -- and this will be for all questions throughout the deposition -- don't make any reference to speaking with any attorney about this up to this moment, but go ahead and respond other than any conversations you had with counsel at any time. THE WITNESS: I remember perhaps speaking with Dr. Rayan in general about things, but I don't think that we sat down in front of a chart and looked at this piece of paper together. BY MS. MULLIGAN: Q. Dr. Rayan, R-a-y-a-n? A. I believe so. Q. Can you tell me the sum and substance of what you and Dr. Rayan discussed? A. We were, in reference to what I was just saying, trying to piece together the viability of his leg going forward. And one factor in that is how much ischemia time he had, and one reference of that is the nursing notes. So that kind of was the context of our conversation. Q. And did you and Dr. Rayan reach a consensus as to what that, quote, "ischemia time" was? A. I think there was a general consensus that it 87

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was -- that it had been occurring for a period of time. What period of time was uncertain. Q. Was there a range that there was a general consensus about -- regarding the time of the ischemia? A. As I look at this, we noted that there are some potential signs for at least changes at the 1800 hour. There is the 2000 hour notation that is lined out, and there is no 2000 hour unlined-out version. And the next version of the extremity neurovascular assessment record is at 2200 hours, and we see some changes there as well. Q. So did you and Dr. Rayan reach a consensus that Mr. Fagan had likely had evidence of ischemia at 1800, 2000 or any other time? MR. DEUPREY: It's been asked and answered, but go ahead and try to respond. It's ambiguous. THE WITNESS: I don't know that we said "Aha! Here; it must have been at this time; here it is," exactly, but from this we know that there is a -- some ischemia time that is longer than perhaps first appreciated. BY MS. MULLIGAN: Q. And did this timing factor enter into any treatment decisions regarding Mr. Fagan? MR. DEUPREY: That's ambiguous, but go ahead and try to respond. 88

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THE WITNESS: It -- I think it's one of many factors in his treatment. BY MS. MULLIGAN: Q. And what were the other factors? A. Other medical factors in terms of his overall health and being. Q. And what was the conclusion that you reached regarding Mr. Fagan's overall health and being? MR. DEUPREY: At what time? MS. MULLIGAN: At the time the treatment decisions were being made about him from February 10th, 11 or 12th. THE WITNESS: Well, essentially the time period of February 10th, 11th and 12th, that there was some significant question of the viability and survivability of his leg. As early as the 10th the topic of amputation was broached. So there was significant concern on the 10th, 11th and 12th area that was heightened by any evidence of more prolonged ischemia. BY MS. MULLIGAN: Q. Now, this discussion with Dr. Rayan that you referred to, do you recall when that took place? A. Specifically, no, but I know we had really multiple conversations throughout his care. And I know that we had at least one significant conversation about 89

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the potential of amputation as an outcome early on. And I know he mentioned it to the patient as well. And the reason why I know that is besides some general recollection of some seminal facts, but I remember having to speak with Tom Fagan at length about it. Q. And do you recall which day this conversation with Dr. Rayan took place about this potential amputation? A. I don't know. I know there was at least one relatively early conversation. And by early I mean 10th, 11th, 12th kind of time period, early. And we had some subsequent conversations late as well about amputation. Q. By late you mean moving into now March and April? A. Weeks and/or months later. It wasn't one conversation. Q. I'm mindful that you told us your original plan was to leave Los Angeles in time to get back for this rugby meeting at 10:00 a.m. in San Diego, but in fact what time did you leave Los Angeles on the morning of the 10th? A. I left well before sunup. It was dark. Q. Can you give me an estimate as to what time you left? A. Well, backtracking -- because I know I arrived 90

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at the hospital approximately 6:00 a.m., and that is give or take like my other guesstimates were. So backtracking, I would say probably 3:30-ish, with the same general parameters. Q. Now, with respect to conversations with Dr. Rayan about trying to come up with a treatment plan for Mr. Fagan, I know you have told me that one of the factors was the timing, how long he had likely had the ischemia, correct? A. That's one factor. Q. Did you ever discuss with Dr. Rayan what the likely cause of the ischemia was in the first place? A. We had a general conversation to that effect when I first saw him and during his first surgical procedure. Q. Did you have other discussions with Dr. Rayan at other times subsequent to that first date after the first st surgical procedure? Specifically discussions about what the most likely cause of the ischemia was. A. In general our initial discussions were -- and I don't want to misquote here. MR. DEUPREY: What record are you looking for, Doctor? THE WITNESS: Just a note that -MR. DEUPREY: You have some records to your left 91

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as well. THE WITNESS: Okay. MS. MULLIGAN: Let's go off the record briefly while we find this document. VIDEOGRAPHER: This concludes Tape 1 of the deposition of Dr. David Chao. Off the record at 11:55. (Discussion off the record.) VIDEOGRAPHER: This is Tape 2 of the deposition of Dr. David Chao. Back on the record at 12:20 p.m. BY MS. MULLIGAN: Q. Doctor, shortly before the break, in response to a question I had of you about whether you and Dr. Rayan discussed the likely cause of Mr. Fagan's ischemia, you identified two documents. I'd like to mark those documents as exhibits. One, as Exhibit 7, is a copy of a chart note that you have dated 2/9/07 at 7:00 a.m. First off, I assume that is incorrect. It should be 2/10, correct? A. I believe that's correct. Q. All right. And the second document you identified is the duplex study. Is that the document I'm about to hand you and mark as Exhibit 8, or is it a different duplex study? A. I think that -- let me look at the date here. I think that is the one. 92

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(Exhibits 7 and 8 marked for identification.) BY MS. MULLIGAN: Q. So with reference, then, to those two exhibits can you respond to my question? What was the discussion you had with Dr. Rayan as to the most likely cause of Mr. Fagan's ischemia? A. Based on the duplex results which showed a right popliteal artery aneurysm and thrombosis with occlusion and Dr. Rayan's intraoperative statements, he indicated that there was no transsection and likely a dissection of the artery. Q. When did this discussion take place? A. During the initial surgery of Dr. Rayan. Q. So this was a discussion that took place with Dr. Rayan on the morning of February 10th. Can you give me an approximate time? A. Well, it would have been likely before or near 7:00 a.m. Q. He did another surgery later that same day, correct? A. Yes. Q. At any time after that second surgery did you ever talk to him about the likely cause of Mr. Fagan's ischemia? A. No. 93

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Q. Up until today you never had another discussion with Dr. Rayan about the likely cause of Mr. Fagan's ischemia other than the conversation on the morning of the 9th before the first -- excuse me -- after the first surgery Dr. Rayan -- withdraw that question. I apologize. MR. DEUPREY: He didn't really say it was after the first surgery. He said it was during the surgery in the intraoperative statements. MS. MULLIGAN: Well, it's a good thing you're paying attention. I'm making chop suey. MR. DEUPREY: I'm making careful notes here. MS. MULLIGAN: I'm glad you are. Q. Excuse me, Doctor. Is it your testimony that at no time did you talk to Dr. Rayan again about the likely cause of Mr. Fagan's ischemia after the first surgery on February 10th? A. No. If I said that, maybe I misspoke or misunderstood your question. Q. So there were later discussions? A. We talked now and again. I know that is not very precise, but I pretty much saw Dr. -- sorry -Mr. Fagan daily and really more than daily for several months, and many times twice a day. And I probably had, well, dozens -- I think that's accurate -- of 94

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conversations with Dr. Rayan. So excuse me if I don't have the specifics, but, yeah, in general, I think that we -- in the context of his care, we broached the subject and essentially it was, okay, you know, how long was he ischemic; is this leg going to be viable and useful; are we continuing to save the leg or do we need to go in another direction. That's the general vein of the -- of the -- of the talks that we had. Q. Now, with respect to the first discussion that you had with Dr. Rayan in this regard, that was during the actual initial procedure he performed? A. Yes. Q. And what did Dr. Rayan tell you about the likely cause of Mr. Fagan's ischemia at that time? MR. DEUPREY: It's been asked and answered, but go ahead and respond. THE WITNESS: Based on the time course and presentation, at that point in time it was his conclusion that it was most likely a dissection injury leading to the popliteal artery occlusion -- leading to the aneurysm and thrombosis and occlusion. BY MS. MULLIGAN: Q. Did you did say a dissection injury, d-i-s-s-e-c-t-i-o-n? A. Yes. 95

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Q. And by dissection you mean cutting? A. That is more of a vascular term. Another way to put it is intimal injury to the artery wall -- inside of the artery wall, whether it be torsional or from stretching or from other things, but -- it's a medical term. Q. What does the word "intimal" mean, to your understanding? A. Inner wall lining. Q. And it's your understanding that Dr. Rayan was of the opinion as of the first surgery he performed that this dissection injury caused the occlusion, correct? A. Yes. I believe that Dr. Rayan was putting together patient presentation findings with operative findings and with the duplex findings that showed the aneurysm and thrombosis with the occlusion. Q. I want to make sure I understand the sequence of events as you understood from Dr. Rayan that the first thing that occurred was the dissection injury. Was that in the popliteal artery? A. I think technically -- and I'm not trying to speak for Dr. Rayan or be a vascular expert, but technically it's an injury to the intimal lining of the artery, and because of that injury, be it from stretching, retraction, brittle vessels, torsion, 96

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mobilization, whatever, that it leads to this dissection phenomenon that leads to an aneurysm and thrombosis. Q. So the aneurysm didn't preexist or predate the dissection injury, at least from what you understood? A. That would be my understanding. Q. And that as a result of the dissection injury it caused the aneurysm? MR. DEUPREY: Caused what? MS. MULLIGAN: Caused the aneurysm. Q. Is that your understanding? A. The field of vascular surgery is quite complicated and I'm not pretending to be a vascular surgeon, but that would be a, in the vernacular, basic medical understanding. Q. And was it your understanding from this discussion that took place during the initial surgery that there was no actual transsection? A. That was my understanding based on the presentation of the patient, the duplex and Dr. Rayan's intraoperative statement. MR. DEUPREY: I want the record to reflect that the background noise has been because sandwiches are being delivered. And I would suggest that we just take a few minutes off the record to deal with that. VIDEOGRAPHER: Off the record at 12:29. 97

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(Noon recess taken.) AFTERNOON SESSION VIDEOGRAPHER: Back on the record at 12:56. BY MS. MULLIGAN: Q. Doctor, I believe you told me that Dr. Rayan communicated to you during his initial surgery that he found no transsection, correct? A. Yes. Q. But that he believed that there was a dissection? A. A dissection injury that I was describing before. Q. What did you understand by the word "transsection" when he said there was no transsection? A. To me transsection means taking a sharp object -- knife, scissors, something or other -- and cutting through and through. Q. By through and through you mean all the way through? A. Correct. Q. So that where there would have originally been one structure, after a transsection there would be two parts? A. Yes. Q. Did Dr. Rayan ever describe for you where he 98

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observed this dissection injury was? MR. DEUPREY: Well, he hasn't testified that Dr. Rayan told him he observed it. MS. MULLIGAN: Very good. Point well taken. Q. What was your understanding as to the basis for what led Dr. Rayan to conclude there was a dissection injury? A. I believe the basis for his conclusion was, first off, the time course. A transsection for a morning surgery would present differently in a different time course. A transsection would not give the postop recovery room findings that were noted in the chart. A transsection would not give the duplex findings of an artery aneurysm and thrombosis leading to occlusion. And I think that a -- that that's why he was led to that conclusion, in addition to I assume his experience and his operative findings. Q. So your attorney's objection earlier was well taken. At no time did Dr. Rayan tell you that he actually saw or observed anything that was consistent with a dissection injury while he was in the operating room? A. Once again, defining dissection not in the vernacular of dissecting tissue, but a dissection being the arterial flow causing more damage inside the artery, 99

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I don't believe that it's typically common to -- not being a vascular surgeon or an expert -- but I don't believe it's typically common to observe that finding directly in any case, and I'm not sure that he was able to directly observe it here, but reached the conclusion, at least in talking to me, from the associated facts. Q. Was it your understanding that the dissection injury was in the popliteal artery or was it somewhere else? A. I think that we see the occlusion, based on the duplex scans, in the popliteal artery. So one would have to assume that the -- any dissection or theoretical problem would be in that area as well. Q. Was it your understanding, based on what you observed being in the operating theater as well as what Dr. Rayan told you, that he actually went into or explored the popliteal artery in the area of the back of the knee at any time during his initial procedure? A. Read it again or read it back. (The question was read.) THE WITNESS: Not speaking for him, but it was my understanding, being in the OR, that he had made several wounds, including fasciotomies and proximal and distal explorations, and there were several significant wounds of Mr. Fagan's right lower leg, and -- but I'm not 100

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aware that he did a complete dissection in the popliteal area. He indicated there was some significant swelling in the area that made some of his exposure difficult, indicating chronicity of the problem. BY MS. MULLIGAN: Q. Was it your understanding that he actually explored the popliteal artery in the back of the knee at any time during the initial procedure? MR. DEUPREY: Asked and answered. You can go ahead and try to answer it further, if you can. THE WITNESS: I don't think he -- well, let's put it this way: I do think that he looked for the popliteal artery. I do think he went behind the knee and the leg, and I don't think he did a definitive dissection of that area based on his surgical limitations and his desire to try to vascularize the leg. You are perhaps better off asking him. MS. MULLIGAN: Oh, I will. Q. I just wanted to make sure by listening to your testimony that you observed in the operating room that he in fact explored the back of the knee in the popliteal artery area and perhaps even heard him discuss his findings he was doing that initial procedure. And it sounds like you did not. 101

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9th.

MR. DEUPREY: Ambiguous. Go ahead and try to respond. THE WITNESS: I think the previous two answers probably explain it best. MS. MULLIGAN: Okay. Q. Now, with respect to the aneurysm, by hearing the sequence of events as you understood it in terms of the dissection injury causing occlusion, causing an aneurysm, it sounds to me as though there is no evidence that the aneurysm preexisted your total knee replacement of February 9th. Is that also your understanding? A. That there was no aneurysm there? Q. Before your total knee replacement of February

MR. DEUPREY: Calls for speculation, lacks foundation. THE WITNESS: I'm not aware of a finding of an aneurysm in his leg in that region before the operative day. BY MS. MULLIGAN: Q. So in your examinations of him prior to surgery, certainly you palpated the back of the knee, correct? A. Correct. Q. And as an educated and experienced surgeon -you know, I presume you have diagnosed aneurysms in the 102

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past, correct? A. They don't happen too often, but one of four centimeters would probably be detectable. Q. And yet you did not detect any evidence consistent with an aneurysm in the posterior popliteal artery in any of your pre-surgical examinations of Mr. Fagan, right? A. I did not. Q. Did you see anything in Mr. Fagan's history or any of his test results that suggest that this aneurysm was present prior to the total knee replacement you performed on February 9th? A. I don't see evidence of that in here. Q. Based on the size of his aneurysm, what would you have expected to find in your evaluation of Mr. Fagan if it had existed pre-surgery? MR. DEUPREY: You're assuming it's the same size then if it existed as it was at the time of the duplex study? MS. MULLIGAN: Yes, sir. Q. Would you expect to feel it pulsating or is there something else? A. Perhaps a mass of some sort, potentially pulsatile. Perhaps you may be able to see it on other imaging studies. 103

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Q. Anything else? A. Not at this second. Q. Now, when you say a mass possibly pulsating, does that mean you might also have been able to feel the actual mass itself regardless of whether it was pulsating? A. Potentially, yes. Q. And then in addition to that, or separate from it, you might also actually feel a movement of it when you would palpate? A. Potentially, yes, in coordination with your actual arterial pulse. I apologize for shifting so much, but I do have a bad back. So if I'm shifting, that's what I'm doing. Q. No problem. As a matter of fact, if you need to change, stand, take breaks, whatever -A. No. I'm just shifting a little bit. MR. DEUPREY: Because we have a video camera focused in one spot, you know, it might cause a problem with the image, but, you know, if we need to just things, we will. MS. MULLIGAN: Absolutely. Or if you need breaks, please let me know. THE WITNESS: Okay. 104

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BY MS. MULLIGAN: Q. You also mentioned that an aneurysm may show up on other imaging studies. Other than duplex studies, in your experience where would a popliteal artery aneurysm show up. What kind of other studies? A. It could show up on an MRI. Q. When you made reference to the arterial pulse, is it that when taking the arterial pulse you may sense something consistent with this mass or a pulsating mass? A. Yes. Q. Is an arterial pulse something that you would typically measure or take yourself in a pre-surgical visit with a patient upon whom you were going to perform a total knee replacement? A. A thorough exam is certainly indicated. Q. Including an arterial pulse? A. Including examining the knee and distal to the knee. Q. And so if custom and practice was followed, you would have taken Mr. Fagan's arterial pulse when you examined or evaluated his knee at any time before surgery, correct? A. Yes. Q. Okay. And, again, in examining his arterial pulse you saw nothing consistent with an aneurysm 105

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pre-existing? A. I did not note it. Q. Do you have any independent recollection of it? A. No. Q. Okay. Good. Now, with respect to this issue of whether there was a transsection, I assume you're familiar with the operation that Dr. Rayan programmed later in the day on February 10th; am I correct? A. I know that there was a second operation that occurred, yes. Q. Okay. And during the course of treating Mr. Fagan, you would have familiarized yourself with the findings from that surgery, correct? A. In general, yes. Q. And in fact I think you told me that you spoke with Dr. Rayan numerous times over the course of treating Mr. Fagan while he was hospitalized, including discussions about his condition, correct? A. I spoke with him a number of times, yes. Q. So with respect to Dr. Rayan's second surgery, I'm going to mark that operative report as Exhibit 9. I did not make the markings that are on Exhibit 9. They were in my copy of the original. MR. DEUPREY: Thank you. 106

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(Exhibit 9 marked for identification.) BY MS. MULLIGAN: Q. Doctor, on the second page of this operative report -- I'm hesitating so you can have time to read the entire thing. I apologize. A. Okay. Q. If you could finish reading the second page, I want to ask you some questions, if I may. A. Okay. Q. Doctor, do you see the reference made by Dr. Rayan where he says in this Exhibit 9, quote, "I uncovered" -- I'm now on the second page in the middle of the first paragraph under "Description of Procedure." Dr. Rayan says -- and I quote -- "I uncovered the initial injury which was a transected popliteal artery behind the knee joint as well as the lacerated popliteal vein," end quote. Were you aware of the fact that Dr. Rayan found a transected popliteal artery during his second procedure? MR. DEUPREY: Reported fact. Objection. THE WITNESS: I am aware of this operative report, yes. BY MS. MULLIGAN: Q. Did you ever talk to Dr. Rayan about this 107

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finding of a transected popliteal artery? A. In the course of my discussions with him it did come up and we did talk about it. Q. And can you tell me the sum and substance of what was said in that discussion? A. The main part of the discussion with Dr. Rayan after this is that because of the damage already done, I presume, that he left the operating room not being able to restore flow into the foot, and that he left the operating room without having a distal pulse of any kind despite thrombectomy and despite his efforts. Q. You had made mention in your chart note which we have marked as Exhibit 7 -- the note that was dated 2/9 and should be 2/10 at 7:00 a.m. -- at the bottom part you say, "Per Dr. Rayan, no transsection; likely dissection. This subsequent op report now of course says transsection. Did you ever talk to him about, hey, you didn't find a transsection the first time. What happened? Why did you find it the second time, or words to that effect? MR. DEUPREY: Ambiguous, but go ahead and try to respond. THE WITNESS: He indicated that for whatever reason the first time he couldn't get into and trace down specifically to the injury, whether it was a timing issue 108

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or exposure issue or swelling issue or -- who knows -- a middle-of-the-night issue. Not sure. And he said that this time that he did try and go into the popliteal area. I'm not sure why he was more successful this time than the first time. And he did indicate that what he saw was the end of the popliteal artery. And at that point in time our discussions were focused on what do we do to try and save Mr. Fagan's leg. And we did have a discussion, however, that the free end of the artery mimicking transsection could happen from an aneurysm from the previously-described mechanism that -- in which it has ruptured and there was a free end. BY MS. MULLIGAN: Q. Did Dr. Rayan concur that that was the most likely cause of the transsection, or is this just conjecture? MR. DEUPREY: Compound, ambiguous. Try to respond. THE WITNESS: Repeat it again. BY MS. MULLIGAN: Q. Sure. Did Dr. Rayan tell you that he concluded that the transsection he found was most likely the result of a ruptured aneurysm? A. Essentially it was a discussion that I would 109

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characterize as: Gee, I got bad news; I'm not able to restore flow. What did you find? Well, I did find a free end of the artery. And so what does that mean? Well, I'm not sure. It still could be consistent with what we talked about before. So I don't know that he drew any conclusions for me on that. Q. So Dr. Rayan never told you, hey, I think it's likely that the aneurysm ruptured and that's what caused the transsection? MR. DEUPREY: Asked and answered. THE WITNESS: I think my previous answer speaks to what he said. BY MS. MULLIGAN: Q. Do you know whether the transsection was in the exact area where the aneurysm was? MR. DEUPREY: Ambiguous. THE WITNESS: I personally do not. BY MS. MULLIGAN: Q. Earlier you had defined a transsection as a sharp object cutting, and we clarified in response to my further question that it would be having one object, and then and cut in two and now you have two pieces. Is that how you understood the word "transsection" was used by Dr. Rayan as related to his 110

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findings in the second surgery? MR. DEUPREY: Ambiguous, argumentative. THE WITNESS: I certainly would defer to a vascular surgeon, but in my education it depends on the use of the word "transsection" just like the use of the word "dissection." And I'm not trying to say that I gave you a medical definition of "transsection" earlier. I was trying to, in layman's terms, describe the situation. BY MS. MULLIGAN: Q. Dr. Rayan also goes on to on describe a lacerated popliteal vein. What do you understand by the term "laceration" or "lacerated"? MR. DEUPREY: Calls for speculation as to what Dr. Rayan meant, but go ahead and try to answer as to what you understand the term to be. THE WITNESS: Laceration medically I suppose means an injury to the integrity of whatever it is. BY MS. MULLIGAN: Q. Do you have an understanding how a rupture of an aneurysm in the popliteal artery would likely cause a lacerated popliteal vein? MR. DEUPREY: That assumes facts not in evidence; that such a thing occurred or that such a thing is being contended. 111

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BY MS. MULLIGAN: Q. Do you have any evidence that would lead you to conclude that there was no lacerated popliteal vein present in Mr. Fagan at the time that Dr. Rayan performed surgery on him the second time on February 10th? A. I don't know that I have personal knowledge either way. Q. Do you have any understanding or belief that Dr. Rayan transected the popliteal artery in either of the surgeries he performed on February 10th? MR. DEUPREY: Calls for complete speculation, lacks foundation, lacks expertise as to making such a judgment. THE WITNESS: Repeat the question, please. MS. MULLIGAN: Sure. Q. Do you have any evidence that Dr. Rayan -excuse me -- that Dr. Rayan transected the popliteal artery in either of the two surgeries he performed on Mr. Fagan on February 10th? MR. DEUPREY: Same objections. THE WITNESS: I don't have any evidence. BY MS. MULLIGAN: Q. And with respect to the lacerated popliteal vein, do you have any evidence that Dr. Rayan is the one that lacerated the popliteal vein? 112

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 surgery?

MR. DEUPREY: Same objections. THE WITNESS: I was not at the surgery. I have no evidence. MR. DEUPREY: We are talking about the second

THE WITNESS: Correct. BY MS. MULLIGAN: Q. You were at the first surgery. Do you have any evidence from the first surgery? MR. DEUPREY: Same objections. THE WITNESS: I did not observe that. BY MS. MULLIGAN: Q. Your brother was at the second surgery, correct? A. I believe so. Q. Did your brother ever tell you that he had any evidence or belief that Dr. Rayan had transected either the popliteal artery or lacerated the popliteal vein? A. Not to my knowledge. Q. Now, when you performed the original total knee replacement on Mr. Fagan, did you operate anywhere in the area of the popliteal artery or popliteal vein in the back -- in the area of the back of the kneecap? MR. DEUPREY: That's ambiguous. THE WITNESS: I don't know that I can answer that question as phrased. 113

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MS. MULLIGAN: Okay. Q. When you performed surgery on Mr. Fagan, were you with any surgical instrument anywhere near the area where Dr. Rayan later found a transected popliteal artery? MR. DEUPREY: Calls for speculation. Do you care to tell us where he found the transsection? Anyway, it calls for speculation, lacks foundation. THE WITNESS: If you or Dr. Rayan can define for me where specifically you are talking about, I would be happy to answer the question. BY MS. MULLIGAN: Q. Didn't you ever have a discussion with Dr. Rayan about this, as to whether or not something you did during the surgery may have caused this transsection or laceration? MR. DEUPREY: It's been asked and answered. Go ahead and try again. THE WITNESS: I think that's what we have been talking about about three or four times here, about my discussions with Dr. Rayan at the first surgery and after the second surgery. BY MS. MULLIGAN: Q. But I don't remember ever hearing you tell me 114

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about a discussion about how anything you did during the surgery could have contributed to this transsection or laceration. Did you have such a discussion with him at any time? MR. DEUPREY: Argumentative. Same discussions. Go ahead. THE WITNESS: I spoke with Dr. Rayan at the first surgery and after the second surgery. At no time did he tell me that I have evidence that there was scissors or a knife and something was cut, if that's what you're asking. We talked about the injury in general and how it may or may have been and we talked about how to treat Mr. Fagan. BY MS. MULLIGAN: Q. Did you ever talk about the location of the injury? A. Dr. Rayan described it to me in general in the popliteal area. The popliteal area certainly is a large area, and I think by this time he certainly had some distorted anatomy. Q. At any time during the total knee replacement on Mr. Fagan did you explore the area behind the knee joint? A. In the course of a knee replacement you work from the front of the knee towards the back of the knee, but, no, we did not explore the popliteal area. 115

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minute?

MS. MULLIGAN: Let me get a copy of your operative report. Excuse me one second. (Discussion off the record.) THE WITNESS: Can we take this time and take a

MS. MULLIGAN: Oh, absolutely. VIDEOGRAPHER: Off the record at 1:28. (Recess taken.) VIDEOGRAPHER: Back on the record at 1:36. MS. MULLIGAN: I have marked as Exhibit 10 the operative report and I distributed copies during our break. (Exhibit 10 marked for identification.) BY MS. MULLIGAN: Q. Doctor, I think this is the report that you dictated, correct? A. Looks like it, yes. Q. And according to the last page, this was dictated on February 9th at 1324 or about 1:24 in the afternoon; is that correct? A. At what time? Q. According to this, 1324 or 1:24 in the afternoon. A. Okay. Q. Do you know how the time stamp for the dictation 116

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is created? Is it something you read in like it's now 1324 or is it some other way? A. I don't know. I think it might be automatic. Q. And were there any other drafts of this operative report other than that which is before us? A. Not that I'm aware of. Q. And did anybody contribute anything to this operative report in terms of substance other than you? A. I don't think so. Q. Is any part of this operative from a template? A. I don't think so. Q. So then if your custom and practice was followed, you would have dictated for this report every single thing that's listed on all three pages? A. I believe that's the case. Q. And if we went back and looked at other operative reports from other total knee replacements you performed, we wouldn't expect to find the exact same language? MR. DEUPREY: Well, I'm going to object to that. You can have many procedure that are exactly the same. BY MS. MULLIGAN: Q. But none of this was from a template, Doctor, correct? This was all dictated by you word for word? A. I don't believe it was from a template. 117

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Q. It was all dictated by you word for word? A. I believe so. Q. Now, the preop and postop diagnoses are the same, correct? A. Yes. Q. Does that mean that nothing during the course of your actual procedure caused you to form any different opinions about the diagnosis or problems with Mr. Fagan's knee? MR. DEUPREY: Ambiguous. THE WITNESS: I did not change the postoperative diagnosis. BY MS. MULLIGAN: Q. There is mention of a right knee loose body. How did you know that existed before the procedure? A. One can tell that there are loose bodies based on symptoms and/or imaging findings. Q. And that large -- excuse me. Withdraw the question. And that right knee loose body as described under findings preoperatively was both large and it was posterior, correct? MR. DEUPREY: Are you asking him if he found it to be large and posterior? MS. MULLIGAN: Preoperatively. 118

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MR. DEUPREY: Preoperatively? MS. MULLIGAN: Yes, sir. Q. As described in your report on Page 2. A. I think that is what the first paragraph says. Q. Now, when you -- you removed that large posterior loose body, correct? A. I believe so. Q. Where was it? A. Posterior. Q. Can you describe it more exact, or is it described anywhere more exact? A. I'm sorry. I was reviewing it. What was your pending question? Q. Sure. Where was this large posterior loose body? A. Posterior. Q. Was it behind the knee joint? MR. DEUPREY: What do you mean behind the knee joint? Ambiguous. THE WITNESS: No. BY MS. MULLIGAN: Q. Can you tell me more specifically where it's described? A. The loose body removal? Q. Yes, sir. 119

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A. Is described in one, two -- it's funny how it's typed up. I guess Paragraph 4. It says, "At this point in time large loose body is removed." Q. As you sit here today, do you know where those large loose bodies were located, sir? MR. DEUPREY: It's been asked and answered. Go ahead and respond again if you can. THE WITNESS: Posteriorly. BY MS. MULLIGAN: Q. Other than posterior -- well, posterior, is that not in the same area as the posterior popliteal artery? MR. DEUPREY: Objection. Go ahead. THE WITNESS: Not necessarily. BY MS. MULLIGAN: Q. Okay. What is wrong about my question? Why is it not necessarily? First of all, not necessarily means it could be or couldn't be, right? A. I guess what it means -- medically speaking -no offense -- it's a bad question. Q. Okay. Tell me what is wrong with my question and maybe I can be more educated. A. The loose bodies that were removed were posterior in the knee joint and floating free as seen on 120

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X-ray. Q. Okay. And were any of them near the popliteal artery? MR. DEUPREY: Ambiguous as to what you mean by "near." THE WITNESS: Can you define what you mean by that? MS. MULLIGAN: Sure. Q. Is it possible that you touched the popliteal artery in the posterior portion of Mr. Fagan's knee in the same area where Dr. Rayan later found it transected? MR. DEUPREY: It's compound. THE WITNESS: I would say no. BY MS. MULLIGAN: Q. Is it your testimony that at no time during anything you did during your procedure for the total knee replacement of Mr. Fagan were you in the area where Dr. Rayan later found a transected popliteal artery posteriorly? MR. DEUPREY: Well, that assume facts not in evidence, compound, calls for speculation as to the area in which Dr. Rayan described the transsection, but go ahead and try to respond, Doctor. THE WITNESS: Can you repeat it or read it again? 121

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BY MS. MULLIGAN: Q. At any time anything you did during any portion of the procedure of the total knee replacement, can you rule out the possibility that you transected the popliteal artery? MR. DEUPREY: That's ambiguous. THE WITNESS: I agree that it's not completely clear, but in effort to answer your question instead of legalese, there is a couple of things. No. 1, a joint replacement surgery is certainly a difficult surgery with some known complications. No. 2, you're saying is it possible. I guess my answer is that there are a lot of things that are possible, and that always in every knee replacement is a possibility. As far as do you think it was a possibility in this particular case, I would say my evidence, having been there and inside his knee and knowing what I did, I would say that the answer is no. And the reason is the technique that I use, the fact that the popliteal artery is extraarticular and we are staying intraarticular in our work. Do we work some in the back of the knee, so to speak? No question, but there are ways to work in the back of the knee to protect neurovascular structures in back of the knee. And, in addition, if there was, as you 122

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use it -- there were transsections, an immediate cut, even with a tourniquet use, there still would be a noticeable change and/or gush or something that would occur that would alert us to a problem. In addition, if there was a transsection as you are describing it at the time of surgery, his postop and recovery room findings would not be what was found and documented. BY MS. MULLIGAN: Q. Anything else? A. I'm sorry for a little bit of a tangent there, but I was just trying to sum up the answer for you without giving the wrong impression of either a yes or no that wasn't explained. Q. That's fine. Have you fully explained your answer? MR. DEUPREY: Subject to my objections, you can go ahead. THE WITNESS: I think so. BY MS. MULLIGAN: Q. So if I heard you correctly, you did work in the back of the knee, correct? MR. DEUPREY: Well, he said what he said, but go ahead and try to clarify again if you can. THE WITNESS: There is no question that we do 123

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work in the back of the knee joint. BY MS. MULLIGAN: Q. You said that there is protections that you take to protect the neurovascular structures. Did I get that right? A. Yes. Q. And what are those protections as are described in your operative report? MR. DEUPREY: Now you have asked two questions. What are the protections and what protections are described in the operative report. MS. MULLIGAN: It's one question. Q. What are those protections as you have described them in this operative report, Exhibit 10? A. Protections for arteries, nerves, vessels of any sort are routinely done in any surgery, including total knee surgery. And the operative report is dictated to indicate the general procedure and does not reflect every step of everything that was done. Otherwise it wouldn't be three or two and change pages; it would be more of a deposition volume. Q. So -- we will go through what your custom and practice is, but just so I understand one step at a time then, the operative report, Exhibit 10, doesn't describe what if any steps you took to protect the neurovascular 124

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structures in Mr. Fagan's knee, correct? MR. DEUPREY: Well, he didn't say if any, but I guess the question is does the operative report expressly reflect protections taken? THE WITNESS: Protections are always and customarily taken, and that's how I learned to do, teach doing and currently perform knee replacements. BY MS. MULLIGAN: Q. Are any of those described in your dictated operative report, Exhibit 10? A. Indirectly. Q. Can you describe for me what indirectly describes the neurovascular protections that you took for Mr. Fagan as it relates to the area of the posterior popliteal artery? A. There are all sorts of protections that are taken in the context of this dictation that one doesn't specifically mention. For example, we don't talk about the use of multiple retractors in this operative report, but clearly there are multiple retractors and protections that are utilized. There are also positioning protections for the artery that are noted in here that are indirect in nature. There are described soft tissue balancing attempts and they are done for the good of the patient, restoration of motion, but also to protect 125

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neurovascular structures. And even the large loose bodies that I removed, they were removed, not resected; in other words, floating free in the back of the knee. Q. Doctor, I'm sorry if perhaps my question wasn't clear. We are going to talk about the things that you customarily do to protect the neurovascular structures in a moment. But before we talk about those things that are outside of the four corners of the operative report, I wanted to talk about the operative report itself. So with regard to this, albeit short three-page report, can you take me through line by line and tell me what is described in this report that shows the type of protection taken for the neurovascular structures of the back of Mr. Fagan's knee? MR. DEUPREY: It's argumentative. Your previous question and his answer to it about what's in the report which indirectly relates to protection. BY MS. MULLIGAN: Q. Is there anything on Page 1 of the report? A. Anything what? Q. Is there anything on Page 1 of the report that describes the protection you took of Mr. Fagan's neurovascular structures in the back of his knee? MR. DEUPREY: Directly or indirectly? MS. MULLIGAN: Either way. 126

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MR. DEUPREY: Pardon? MS. MULLIGAN: Either way. Q. If you can just point me to the line and read it to me. Anything on Page 1? A. Yes. Q. Okay. Good. Can you read it for us? A. Any time you are dealing with a flexion contracture and angular deformity, you are acutely aware of protections to nerves and vessels. Q. I'm sorry. What line are you on? A. Let's see. Preoperative diagnosis, right knee flexion contracture and angular deformity. Q. Does this tell us what if anything you did to protect it or are you just talking about your custom and practice when dealing with this type of a problem? MR. DEUPREY: Well, then I have to object to your use of the term, quote, "indirectly," end quotes, in your previous questions. And this question is also ambiguous and argumentative. MS. MULLIGAN: Sir, indirect came from you and your attorney. I'm allowing you the freedom to include indirect if you like, but don't tell me it's ambiguous when I include it. I didn't use the word in the first place. If you want, we will stick with the word direct. Q. Is there anything on Page 1 of your operative 127

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report that expressly describes any protections that you took to protect the neurovascular structure at the back of Mr. Fagan's knee? MR. DEUPREY: Same objections. Ambiguous. THE WITNESS: As I stated before, that in certain procedures, in certain medical circumstances that there is a -- in medical terms -- a way that you go about achieving your goal, restoring motion, restoring function, doing the surgery. That goes without saying that it involves standard neurovascular protections. If you're asking me if this first page names a specific technique of the many techniques that we normally apply, then, no, clearly it's not on here. BY MS. MULLIGAN: Q. We will talk about your custom and practice which I have heard you say is not necessarily dictated in this three-page report, but that you would have performed, correct? Right now I'm just on the operative report. There is nothing on Page 1. On Page 2 is there anything that you dictated that expressly describes what steps you took to protect the neurovascular structure of the back of Mr. Fagan's knee? MR. DEUPREY: Ambiguous. Go ahead. 128

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implies?

THE WITNESS: What do you mean by expressly

BY MS. MULLIGAN: Q. I didn't use the word implies. Is there anything that you dictated that talks about what you did to protect the back of his knee? MR. DEUPREY: Objection. Ambiguous. THE WITNESS: Once again, in general, we don't talk about the retractors used and what we have done technique-wise; however, there are things that are done here that can help protect the neurovascular structures in the back of the knee. BY MS. MULLIGAN: Q. Okay. Let's start at the top of Page 2 then. In the first paragraph -- I think it starts in the middle of the sentence. Is there anything in that paragraph that expressly describes what you did to protect the neurovascular structures in the back of Mr. Fagan's knee? MR. DEUPREY: And I'm just going -- without interrupting every question -- to object generally to any question which uses the term, quote, "expressly describes," end quote or something to that effect as ambiguous. MS. MULLIGAN: Your running objection is noted. THE WITNESS: The question again, please. 129

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MS. MULLIGAN: Sure. Q. Is there anything in the first paragraph on the top of Page 2 where you expressly describe anything that you did to protect the neurovascular structures in the back of Mr. Fagan's knee? A. I guess my trouble is with "expressly." If you're saying once again naming -- it depends on expressly to a lay person or to me as a physician. When I describe contractures and loss of motion and instability, I'm -- and malalignment, those are things as an orthopedist -- do we need to -MS. MULLIGAN: Are we okay? VIDEOGRAPHER: No problem THE WITNESS: Sorry. Back to it again. If -- as an orthopedist, some of the things in the first paragraph to me indicate that with contractures and loss of motion and malalignment, etcetera, that it's a difficult case, and that in turn certainly means that you need to be careful of neurovascular structures, but it doesn't name a retractor obviously. BY MS. MULLIGAN: Q. And it doesn't expressly tell us any other things that you, in your course and scope of ordinarily doing this procedure, may have done to protect it? MR. DEUPREY: It's argumentative and ambiguous. 130

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THE WITNESS: I'm trying to think of a good way to explain it to you. I mean I'll try to come up with a good analogy to explain it. Things are understood when you are in a certain profession, just like you and Mr. Deuprey may talk and you understand what you're talking about and I may not understand. And I think the same holds in medicine. To use a sporting analogy, if one team is down by three touch downs, they are going to throw the ball. And both teams know no it without either team telling the other team. And a lay person may not realize that and what is going on. And so do I in this op report say that a pass is being thrown on every play here, no, but understanding the circumstances, it's leading to that. And I'm just trying to clarify my point with that. BY MS. MULLIGAN: Q. We will talk about your normal course and scope of what you would do to protect the neurovascular structures, but right now I'm still on the operative report. So is there anything in the first paragraph that expressly describes specifically what you did to protect the neurovascular structures in the posterior of Mr. Fagan's knee? 131

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A. I think it's the same answer as before. Q. Okay. Let's go to the next paragraph then. The second paragraph starts out "a 15-degree flexion contracture." Is there anything in this paragraph that describes what you did to protect the neurovascular structures in the back of Mr. Fagan's knee? MR. DEUPREY: Same objection. Ambiguous. THE WITNESS: Similar answer. BY MS. MULLIGAN: Q. Which is that if I was playing football and knowing somebody was going to make a pass that I would know it without having to be there. I don't mean to be sarcastic, but I mean is that your answer pretty much by analogy? MR. DEUPREY: Argumentative. BY MS. MULLIGAN: Q. Because as you heard I didn't even know there was no football in February. A. Perhaps I chose a wrong analogy. Q. But the point is, is there anything that expressly describes that can tell us word for word what you did, or is it just that you're going to tell us when we talk about your custom and practice and that it may not have been dictated in the report? A. I think that's what's been said for the last 132

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amount of time here. And I think we're going over it again and again. And I keep trying to describe it to you in different ways to get you to understand. Q. Well, I'm sorry if I'm a bit thick, but what I'm hearing is there is a lot of stuff in this report that tells us how you protect the neurovascular structures at the back of Mr. Fagan's knee, but as a lay person I don't know what those things are until you read them to me. So, for example, you say, quote, "the patella everted," e-v-e-r-t-e-d. I don't know what that means. Does this mean this was something you did to protect the back of the neurovascular structure of his knee? MR. DEUPREY: Argumentative -MS. MULLIGAN: I'm just giving examples. MR. DEUPREY: -- compound, ambiguous. THE WITNESS: Well, the answer to that question, even though it's not completely clear, is there is nothing -- there are a lot of things that we do at the time of surgery that have multiple uses and for protection. Something as simple as everting the patella absolutely has an effect on protecting the neurovascular structures. For example, there are techniques to do knee replacements that don't involve everting the patella. Many incision techniques, less invasive techniques which allow for poor visualization and less protection of the 133

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artery. In addition, everting the patella allows for certain flexion angles and exposures that would place the artery at less risk and improve visualization to protect the artery and improve mobilization of the knee. And I guess this is what I was getting at. All I say in the operative report is that the patella was everted, but it means a lot of different things. And I guess I'm having trouble with -- the patella being everted is necessary and better for a lot of different reasons, one of them being further protection of neurovascular structures in the knee. But is that an expressly, as you said, dictated -- I'm not sure how to answer that. BY MS. MULLIGAN: Q. This one is dictated. The patella everted. A. But I wouldn't say that -- it's not a clean category. The reason I put that in there was to tell everybody that I protected neurovascular structures. It's not exactly equivalent. That is why I'm struggling. Q. That wasn't my question. Regardless of the reason you may have originally put it in here, my questions are what in this report describes anything taken by you that protected the neurovascular structures. So now from what I am hearing, the patella everted. That is one of the things that you 134

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did that may have been done for multiple reasons, but one of the benefits was that it also helped to protect the posterior of the neurovascular structures of Mr. Fagan's knee; is that correct? A. Yes. It contributes in that way, yes. Q. Okay. Can you tell me what else you dictated that would have also protected the neurovascular structure of the posterior of Mr. Fagan's knee? A. Do you want me to go through in that same way? Q. Sir, that's what I have been trying, and I'm sorry if my question wasn't clear. Yes, please. A. I didn't know that wanted all this long-winded medical stuff. Going through the description of the procedure -- and pardon me if I miss something as I go through it here and explain it, but, you know, the -even something like the right leg sterile prepped and draped in the usual fashion helps us protect the artery and nerve by allowing me to position the leg in certain positions to place the nerve and artery at less risk. Is it fairly commonly done? Sure. But it is something that can have an effect. Of course there are different approaches to knee replacement, and the anterior incision made also helps to preserve the posterior structures. The technique in 135

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general of this 15-centimeter incision helps to protect neurovascular structures and ligaments. Q. How? A. Allowing for visualization and allowing for exposure and allowing for us to see what work is being done but also to see if we are getting into trouble. Q. Could you visualize the entire portion of the posterior popliteal artery at any time while any instrument was behind the knee? MR. DEUPREY: Okay. Now you're asking a whole different question. Before you had asked him to describe what was done to protect the neurovascular structures. I don't think he was finished with his answer to that, but it seems you have shifted. If you want shift, that's fine. I just want the record to be clear. MS. MULLIGAN: I just did. MR. DEUPREY: Okay. Go ahead. MS. MULLIGAN: Could you read back the question. (The question was read.) MR. DEUPREY: That assumes there was an instrument behind the knee. It's not in evidence. It's ambiguous otherwise as well. THE WITNESS: It seems like a two-part question lumped into one. Are you able to break it down into one question? 136

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BY MS. MULLIGAN: Q. Well, if it's two parts to you, break it down in the way that you think in naturally flows, because I only see one. But if it's two parts to you, take it one at a time. A. To the first part, do I ever see the entire popliteal artery throughout its course during the surgery? The answer is no. Q. Can you see the entire posterior popliteal artery while any instrument is in the posterior portion of the knee? MR. DEUPREY: That assumes facts not in evidence as to instruments. Asked and answered as to the latter part of your compound question. THE WITNESS: Instruments placed in the knee posteriorly remain intraarticularly in the knee joint and the popliteal artery is not, as you say, completely visualized during the surgery. BY MS. MULLIGAN: Q. You talked about trying to better visualize the knee in terms of the positioning of the patient. What other things are there in your report that talk about what you did to protect the neurovascular structure of the posterior of Mr. Fagan's knee? MR. DEUPREY: That's been asked and answered, 137

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and it's compound and ambiguous, but go ahead and expand if you can. MS. MULLIGAN: First I was objected to that I was interrupting his going through the whole report. Now I'm told that we already did it. MR. DEUPREY: Well, I'm sorry -MS. MULLIGAN: It's okay. MR. DEUPREY: But I want to clarify, because I'm not trying to obstruct. He previously testified to at least three things that can be implied from this report which were intended to protect the structures. Your last question assumed one of those things and that's why I objected, because I don't want the record to reflect, per your question, that he only made reference to one type of protection in prior testimony. BY MS. MULLIGAN: Q. So far, Doctor, to recap, I have got the patella being everted, and I have got the positioning of the patient. It appears that Mr. Deuprey has a third one that I neglected to write down. MR. DEUPREY: I can go over my notes if you -THE WITNESS: Anterior incision. MR. DEUPREY: Let's let the doctor? BY MS. MULLIGAN: Q. The anterior incision is the third. Okay. Any 138

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others? MR. DEUPREY: He mentioned the multiple retractors being utilized. BY MS. MULLIGAN: Q. Is that described in your report? MR. DEUPREY: Well, again, described? Ambiguous, argumentative. THE WITNESS: Well, once again, you guys are obviously talking to each other in a legal way that I don't understand, but I would kind of have to agree with Dan in that -- and perhaps I didn't spell it out when we were talking about the patella being everted, it's being everted with different sets of retractors and allowing for exposure, and that indeed also does help the neurovascular structures in keeping them safe. So this is kind of what I mean by -- it's like my trying to learn how to take a deposition in one day. It's hard. There are so many different facets and levels. BY MS. MULLIGAN: Q. So the use of retractors is implied because you would need them in order to evert the patella? A. Yes. Q. Any of the retractors that you place anywhere near the posterior popliteal artery? 139

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MR. DEUPREY: Ambiguous. THE WITNESS: Well, once again, you'd have to define "near." BY MS. MULLIGAN: Q. You don't describe where those retractors are in your report, so I have to ask you. Is there a potential for the placement of where you put any of the retractors could possibly have transected the popliteal artery? A. I guess the -- trying to explain it, that there is no question that we work in knee replacements in, quote, "the back of the knee," but intraarticularly. We are close to, no question, the popliteal artery and that is why there are potential complications that can happen. Yet being close to the popliteal artery, if you remain inside the joint and are safe about it, you are not close to damaging the popliteal artery. Let me try another analogy that I hope will make much more sense than my silly football analogy. The video reporter is very close in one respect to falling off a 28-story building, but in some respects is not at all, yet he's just looked outside the window, yet he's quite safe, but yet he is quite close to gravity in essence, and if that were a balcony it would be the same thing. So it depends on kind of how you're asking. By proximity he's quite close if that window were open, 140

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yet I think he would feel quite safe even if the window were open. Q. Good. I like that analogy. So as one could be asked to estimate how far is it from the point where he would drop off, let me ask you to estimate how -- I understood you were intraarticular -- I did hear you say that -- but can you tell me in terms of proximity alone what was the closest point you were likely at in relationship to the posterior popliteal artery? A. Well, the popliteal artery varies in position in terms of how close it is to the joint and the posterior wall and capsule of the joint depending on a number of things, including the position of the leg, including people's anatomy, including the way retractors are placed. It's hard to estimate and say and it's sort of a not well-defined question as to what point in time and what patient. Q. With respect to Mr. Fagan, what is the closest that you were to any portion of the posterior popliteal artery at any time during the procedure? MR. DEUPREY: Calls for speculation as to where the popliteal artery was in this patient. He said anatomies vary. THE WITNESS: As I'm sure we all realize, the 141

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popliteal artery nerve that's next to it and the vein that runs next to it all run in a longitudinal parallel fashion behind the knee and are extraarticular. It's well known its, quote, "proximity" to the back of the knee varies even in the same patient based on the positioning of the knee, and that's where we get into some of those protections. But to answer your question that -- if you're talking anatomic studies and you're saying how close it can be, it can be as close, depending on how you position it, if you're saying the closest it can be kind of thing is -- it can be as close as a centimeter from the back of the knee joint extraarticularly. BY MS. MULLIGAN: Q. Did you ever visualize the popliteal artery in the posterior portion of Mr. Fagan's leg at any time during this total knee replacement? A. The popliteal artery being an extraarticular structure and our surgery remaining intraarticular, the answer is no. Q. Do you have any reason to believe that Mr. Fagan's popliteal artery anatomy was atypical for an adult male of his age? MR. DEUPREY: Ambiguous. THE WITNESS: I would have to say yes. 142

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BY MS. MULLIGAN: Q. Okay. Tell me the basis for your opinion. A. Because of his angular deformity, his flexion contracture and the contractures that he had -- i.e., scar tissue -- those are all known factors that could potentially alter his anatomy. But even in that case it is typically not closer than one centimeter. Q. And of course the fact that you knew he had this angular deformity and flexion contracture before you did the surgery alerted you to the potential that his popliteal artery may be somewhat affected, correct? MR. DEUPREY: That's ambiguous, compound, assumes facts not in evidence. THE WITNESS: I can probably answer what I think you're asking me, but it probably wouldn't be answering your question. BY MS. MULLIGAN: Q. Now that's fair. When I asked you if you had any reason to believe that Mr. Fagan's anatomy in the area of his popliteal artery was atypical, you answered yes because he had this angular deformity and flexion contracture. But of course you knew he had those things before you operated on him, correct? A. Yes. Q. So you would have taken that into account in 143

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taking whatever steps were taken to protect the area of the posterior popliteal artery, right? A. Yes. Q. Okay. And even then you had no reason to believe that Mr. Fagan's popliteal artery was any closer than one centimeter from where you were performing your intraarticular surgery on the back of his kneecap? MR. DEUPREY: Well, that's not what he said, not one centimeter from where he was performing his procedure. He said one centimeter from the back of the knee joint. MS. MULLIGAN: Correct. Q. And you were intraarticular and the popliteal artery is extraarticular; did I get that right? A. Yes. Q. So, similarly, while our videographer may be only a couple feet from the great abyss of falling 28 stories, he's got something in between him which is the wall and the glass, correct? A. Yes. Q. And by analogy, then, Mr. Fagan -- at the closest to where you were operating posteriorly and where his popliteal artery came was one centimeter at its closest, but you were intraarticular and the popliteal artery was extraarticular? 144

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MR. DEUPREY: Compound. He hasn't said one centimeter from where he was operating. He said one centimeter from the back of the knee joint. BY MS. MULLIGAN: Q. Was I incorrect on that, Doctor? MR. DEUPREY: Compound and ambiguous. THE WITNESS: I don't think you were completely correct. I guess I would say that I don't know how thick the wall is between the videographer and, as you call it, the great abyss. But architects may say the wall is a minimum of six inches and it may be 12 inches, depending on the type of wall that it is. And that's what I'm saying, is anatomic studies would have said that it is as close as one centimeter, many times further away. And in Mr. Fagan's case it is something that is always on the top of our mind because of the contractures that we talk about which -- and here is where the analogy of the poor videographer here and the wall breaks down, in that the artery, depending on where it is, is not always static and it is mobile depending upon positioning. And in Mr. Fagan's case might be less mobile based on contractures, etcetera. So it's not a perfect analogy. BY MS. MULLIGAN: Q. And knowing that it's not static and that it may be as close as one centimeter -145

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A. And most times further away than that. That is sort of the lower limit. Q. Okay. So what's the range? One centimeter is the closest, and while you're operating with any instruments in the back of the knee what is the furthest that the popliteal artery is likely located? And I don't mean the furthest end of the popliteal artery. I mean the closest part of it to where you're performing surgery. A. It depends on where you are in the back of the knee, but it certainly can vary by at least a magnitude. Q. What is a magnitude? A. Well, if you're talking one centimeter, at least two centimeters. Q. So the range is one to two centimeters? A. That's not what I said. Q. I'm sorry. So what did you say? A. If you were to assume that a patient had anatomy that put his popliteal artery at the lower limit of what we find, which may indeed be one centimeter, in that assumed patient with a very close popliteal artery, closer than the average person on the street, you still can get an additional centimeter of protection with positioning and maybe more with other techniques. Q. So if one centimeter is the lowest end of the 146

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range, what is it the outside end of the range that is reasonable? MR. DEUPREY: Ambiguous. THE WITNESS: Depends on where the artery is, but depending on the person, I suppose that it could be up to three centimeters posteriorly extraarticular. BY MS. MULLIGAN: Q. I heard you say that you don't actually visualize the posterior artery because you're intraarticularly and it's outside that. So how do you keep track of knowing where that artery is if you can't see it? MR. DEUPREY: That assumes facts not in evidence; that he does keep track of where the artery is. BY MS. MULLIGAN: Q. You don't keep track of it? MR. DEUPREY: Argumentative. BY MS. MULLIGAN: Q. Okay. Do you or don't you keep track of where the popliteal artery is when you are performing any type of procedure on the back of the knee? MR. DEUPREY: What do you mean by keep track? Ambiguous. Go ahead and try to respond, Doctor. THE WITNESS: Are you asking me do I keep track 147

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of where it is by dissecting it out? BY MS. MULLIGAN: Q. By any means. A. By any means, certainly we have an idea of where the popliteal artery is. Q. How? A. From years of education and experience and knowledge of anatomy and having performed thousands of knee surgeries, from the use of surgical techniques to be aware of where we are in anatomy. Q. Okay. You have told me that the popliteal artery is not static and it moves. So when you're performing a procedure on the back of Mr. Fagan's knee, how do you keep track of where the popliteal artery is at any given time? MR. DEUPREY: Same objections as before to the same question. THE WITNESS: Now, to try and make things easier, if you'll allow me to just explain as opposed to answering a direct question -MS. MULLIGAN: Sure. THE WITNESS: -- I think you are -- by your question maybe I haven't explained to you sufficiently what I mean. Your question implies that -- how do you know where the popliteal artery is if you're saying it 148

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moves all around. Well, it moves all around in a controlled fashion. And what I mean by that is that when the leg is in extension and hyperextension is perhaps when it's closest, as one example. And when the knee is in flexion, in full flexion, it naturally drops and moves away. It does not get closer in knee flexion; it gets further away in knee flexion. And so because of surgical techniques and what we know about the body, the way we can do things in certain ways and know where the artery is without, quote, "seeing" where the artery is, we know where it is and how to be safe and get around it. BY MS. MULLIGAN: Q. Have you ever had a patient believe that you had transected or cut any arteries in any surgeries other than Mr. Fagan? MR. DEUPREY: Can I have that question back? I didn't hear it all (The question was read.) MR. DEUPREY: That calls for speculation as to what the patient believes. BY MS. MULLIGAN: Q. Are you aware of any such allegations in any other cases? 149

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A. I think you're very familiar with the allegations, and I don't recall the specific wording or language, but I probably would answer yes to your question. And you are aware of the case and -Q. Is it just one case or more than one? A. That I've been accused of transecting -- sued for transecting someone's artery? Q. Yes, sir. Or maybe not even a suit; that there has been an allegation that you transected an artery. A. Well, I think in what we do -- what orthopedists do and what I do every day -- we transect vessels and arteries all the time, most of the time purposefully in what we do moving forward. And the only time that I have been sued is the case that you represented. I believe her last name was Ruecker. Q. I think you're confusing me with Debra Hurst and I'm deeply flattered. MR. DEUPREY: We will send Ms. Hurst a copy of this transcript. MS. MULLIGAN: R-u-e-c-k-e-r, Ms. Ruecker? THE WITNESS: I'm sorry and I apologize and -MS. MULLIGAN: No, no, no. I take it as a compliment. Thank you. Q. Other than that, are you aware of any other claims by anyone that has sued or may not have sued where 150

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they claimed that you inadvertently transected or cut an artery? A. I'm not aware of another suit. Q. Are you aware of any other claims? A. What's the difference between a claim and a suit? Q. Well, I haven't filed suit against you yet, so this wouldn't count as a lawsuit which brings you here today. A. So that's why I'm trying -Q. Are you aware of any other claims that a patient has through an attorney or individually that you inadvertently transected an artery during any procedure other than the Reucker case? A. By the -- as you pointed out in this case I am not sued and I'm not sure what the claim of Mr. Fagan is or isn't, but using that same analogy I believe the Reucker is the only one. Q. Have you been contacted by an attorney representing any other patients that were threatening to bring suit over a lacerated or transected artery performed by you in any procedure? MR. DEUPREY: Up to the present time? MS. MULLIGAN: Yes, sir. THE WITNESS: I received a letter that I 151

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forwarded on to my insurance company from a patient that made several claims regarding a hip replacement surgery. BY MS. MULLIGAN: Q. A similar claim, though, to the extent that it alleges that it was a transected artery? MR. DEUPREY: Well, it wasn't a popliteal artery. MS. MULLIGAN: I don't know. THE WITNESS: My recollection of the one letter indicated many different theories and allegations, none of which involved the popliteal artery and the -- I don't know if -- the writer of the letter talked about some multiple different theories. BY MS. MULLIGAN: Q. But one of which is an artery was allegedly transected during the performance of a surgery? MR. DEUPREY: This is a compound question. Even though she may be talking about transsections centrally, but just try to break it out and respond without any mentioning any names because the name of the patient is confidential. THE WITNESS: Repeat the question again. MS. MULLIGAN: Sure. Q. There is a third case, then. Reucker, Mr. Fagan, and it sounds like some other patient that's 152

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making an allegation against you that you inadvertently transected an artery during -- I think you said a hip surgery? MR. DEUPREY: I don't think he said that there had been a transsection, but go ahead and try to reply, Doctor, to the best of your understanding. THE WITNESS: My understanding is that the, quote, "allegations" were multiple and are not formalized in a suit or sorted out yet. BY MS. MULLIGAN: Q. So if I understand correctly, even when you take multiple steps to try and protect and prevent a laceration or transsection of an artery during surgery, it can still happen? A. I think that unfortunately is probably true. Q. So as we go through and talk about, you know, everting and positioning and use of retractors, that even with those and other things that we will talk about that you did to try and protect it, arteries still get cut? Not intentionally, but they get cut? MR. DEUPREY: It's ambiguous and compound. THE WITNESS: If you're saying what I think you're saying, that in the best of worlds that a popliteal artery injury is a known complication of total knee replacement, I would probably have to agree. 153

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BY MS. MULLIGAN: Q. And so am correct in assuming that in addition to taking steps to try and prevent that damage from occurring during the procedure, there is things that you would do as a physician to ensure that it didn't happen when you have completed the procedure? MR. DEUPREY: He hasn't said you can ensure it doesn't happen. I mean that's a misstatement, assumes facts not in evidence, argumentative. THE WITNESS: Repeat the question, please. BY MS. MULLIGAN: Q. Just as you do things during the procedure to try and prevent the neurovascular structures such as the popliteal artery, because it's a known risk that you -that one can cut an artery, are there also things that you do after the procedure is over to make sure it hasn't inadvertently been cut? MR. DEUPREY: Again, assumes facts not in evidence; it's compound, argumentative. THE WITNESS: There are things that you do after and during the surgery. And what I mean by that is during the surgery there are things that you do to put yourself in a possession where you don't injure an artery or a nerve. But there are also things that you can do to know that you have done it at the time of surgery and 154

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afterwards. And as I'm sure you're aware, detection of the injury is quite an important component. BY MS. MULLIGAN: Q. Okay. So we were going through this op report, and just to summarize, we had patella everted, positioning, anterior incision, and then you talked about how implicitly you had to use retractors in order to do the patella eversion. Are there other things that are described in this op report, Exhibit 10, that you did to protect the neurovascular structure of the posterior of Mr. Fagan's knee? MR. DEUPREY: Objection. Assumes facts not in evidence, compound, ambiguous, misstates the testimony. Go ahead, Doctor. Try to respond. THE WITNESS: Concentrating in this -- I guess it's the third paragraph that we were still on -MS. MULLIGAN: Yes, sir. THE WITNESS: -- and once again with the same caveats that we talked about, how doing something in here isn't for the only reason of protection and what we talked about before -BY MS. MULLIGAN: Q. Yes, sir. A. Because I'm not trying to overstate that everything I did here was only to protect the artery. It 155

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was to do the procedure as well. Q. Given. A. Given the next sentence, that hemostasis was achieved, I believe that is important, because if you achieve hemostasis it will improve your visualization which allows you to ensure that you remain intraarticular in nature and also allows you to realize that even with a tourniquet up, if you were to injure a major vessel, you would have a clear field immediately to some extent become a bloody field, and it would give you a sign to stop and look and ensure that something else didn't happen. So even something as simple as hemostasis being achieved can contribute to that. Excess spurs were removed also goes into the exposure category to allow for visualization but also to loosen ligaments to allow for exposure, regain motion in the knee without having to do more contracture releases. It's a way to help balance the knee and fix the knee without having to do more soft tissue releases. Q. And were there spurs in the posterior of Mr. Fagan's knee? A. In general there were spurs throughout his knee, but the spur removal that we are talking about are mostly anterior, medial and lateral which, believe it or not, does improve the exposure and soft tissue balancing 156

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throughout the knee. Q. Is it your testimony that you removed no spurs posteriorly? MR. DEUPREY: He hasn't said that, but go ahead and respond. MS. MULLIGAN: That's the question. THE WITNESS: We do not remove posterior spurs unless they are in the way of a release. And there are some final steps that one can do to remove posterior spurs, but the bone that we removed from behind the knee were indeed loose bodies, not attached bodies of spurs. BY MS. MULLIGAN: Q. Thank you. Is there anything else that you did to protect the neurovascular structure of the posterior of Mr. Fagan's knee? A. Given that we finished that one paragraph and there are six more or so to go, do you mind if I take a little back stretch break? MS. MULLIGAN: Take your time. Let's go off the record. VIDEOGRAPHER: This concludes Tape 2 of the deposition of Dr. David Chao. Off the record at 2:36. (Recess taken.) VIDEOGRAPHER: This is Tape 3 of the deposition 157

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of Dr. David Chao. Back on the record at 2:58. BY MS. MULLIGAN: Q. Doctor, you were going through the operative report for me, Exhibit 10, and identifying those places where it describes what you did to protect the neurovascular structures of the posterior of Mr. Fagan's knee. Could you please continue. MR. DEUPREY: Ambiguous as to "describe." Go ahead, Doctor. THE WITNESS: In the interest of efficiency, I'm continuing I guess the same vein of answers that we were doing before in terms of obviously I'm not talking about the indirect and all the other things we were talking about. So starting with the paragraph "femur," there are -- drill hole intramedullary distally. That is a way that could be used to protect posteriorly, because you -by making an intramedullary hole, you're staying within the bone. That stays away from neurovascular structures completely in terms of the alignment that you're trying to get, and also can be used as a retraction method. The next line, "the distal cut of 12 millimeters was made due to the contracture," and that is more than a typical cut. And my knowing that he has a soft tissue contracture, that one of the more dangerous points for 158

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nerves and arteries are to continue with unlimited soft tissue releases, and by cutting a little more bone, that lessens the amount of soft tissue release that we'll need for visualization and restoring his motion which was his primary goal before surgery. Probably going into the -- oh, then "sized for a No. 6, anterior, posterior and chamfer cuts," that is all made with a jig that helps to protect any neurovascular potential damage. "At this point" is the next paragraph. "Complete meniscectomy was accomplished," and that's -my meniscectomies are accomplished in a way where I am displacing the tibia anteriorly, and as you get to the posterior horns of the meniscus, cutting toward the anterior knee to avoid any damage posteriorly. Next, "it was determined that the knee was still tight," and so because of that we were going to perform a PCL sacrificing knee replacement, and we took a box cut out of the PCL, which means we took bone off the distal femur and freed up the PCL, as opposed to taking a knife to the PCL and perhaps going more posteriorly than one might intend. And that was indicated because even though we took the first step of taking extra bone, it wasn't enough, and so we needed to take the PCL to convert it to a PCL sacrificing knee. 159

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BY MS. MULLIGAN: Q. How does this protect the back of Mr. Fagan's popliteal artery? A. I guess I didn't explain it to a lay person well, but how it works is that either -- in a tight knee like Mr. Fagan's, you either leave him tight without all his motion. And as a relatively young guy, I think that is -- I think that that would be suboptimal, and it was not his intended preoperative goal or discussion. And there is -- you can do an infinite amount of soft tissue type balancing, but if you continue to excessively soft tissue balance in the knee, you can start to put neurovascular structures at risk. Because of chronic contractures, nerves and vessels can shorten and not be as pliable and as long. So by taking a little more bone, it lessens the amount of soft tissue contracture you have to do, it improve your visualization and decreases your need to go and do more risky releases around the back. Q. Did you do more risky releases around the back? A. I did less risky releases around the back as a result of doing -- increasing the amount of bone resection and resecting the PCL with the box cut. Q. Have you described for us so far what releases around the back that you did, or are we going there? A. We're not really there yet. 160

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Q. Okay. All right. I'm sorry. I don't mean to interrupt. Please continue. A. Next sentence, "at this point in time large loose bodies were removed." And the loose bodies that were removed are from the back of the knee. If you have loose bodies in back of the knee, that can contribute to the contractures, but, as I said, these were loose. We talked the about removal of osteophytes as to helping the exposure and the ligamentous laxity that reduces the need for putting the artery and/or nerve at risk. Q. How many large loose bodies did you remove from the back of the knee? A. Specifically I don't know that I recall. There may be in the chart a -- many times they will automatically send it to pathology and give you a count. I don't know that it makes much difference in terms of my treatment. Q. There was more than one? A. There was more than one. There was at least one large one and I think there were, as typical, more than one. Q. When you use the term "large," can you give me an idea of what dimension you're talking about? A. I suppose that many people would have a 161

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different definition of large. I would say maybe small would be to say like that of a grain of rice. Medium being that of a -- let's see. What is a good next thing? A small peanut maybe. I can't think of something for size. And large might be, let's say, a marble or potentially more than a marble as some general terms. Q. So when you describe at least one large posterior loose body that was removed, it was at least the size of a marble or larger? A. Yeah. Q. Okay. Please continue. A. Then finally, by resecting the PCL with the box cut and stuff that eliminates the need for releasing the PCL and is considered protective to the neurovascular structures posteriorly. You want me to keep tackling -Q. Please, sir. I'm trying not to interrupt you. A. I didn't want to just keep rambling. The next paragraph, "at this point in time the knee was hyperflexed." I think we talked about that a little bit. By hyperflexing the knee it takes the popliteal artery, vein and the nerves away from the back of the knee by taking tension off. And at this point in time when we hyperflex -- it's not mentioned specifically as part of the exposure of the proximal tibia comes from 162

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safe blunt retractors. Let's see. The tibia was repaired with the internal alignment guide -- it probably should say prepared, but that -- I think the message is -- gets across. You notice that we do make a standard initial cut on the tibia using the guide, and then the guides help control where you cut and how much and that can be protective to the artery and nerve. Q. Are you now at the release behind the knee? A. I don't know that we are quite there yet. Q. Okay. I apologize. A. Let me find where that is. Q. No. Continue. I'm sorry I interrupted. A. Two additional millimeters were taken off at this point in time on both sides to try and balance the knee indicate how tight the knee is, and yet not to dwell on it, but by taking more -- and we keep taking a little more and a little more -- that obviates the need for doing an extensive release. Then after two millimeters were taken off the tibia, now we have taken off several millimeters of extra bone, and that starts to gets us into the right ballpark. And once we are in the right ballpark at this point in time we start the releases medially and laterally and posteriorly along the bone of the femur and tibia to stay 163

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within our safe zones. Q. Can you tell me what instruments you used at any time in the posterior part of the knee as you're doing this release? A. Usually some sort of elevator. Q. What's an elevator? I assume it's not the type we get into and ride down to the lobby? A. It's an orthopedic instrument that is -- how do you describe it? An elevator is -- I guess it's short for a periosteal elevator. Q. Oh, easy for you to say. Can you spell that for her? A. P-e-r-i-o-s-t-e -- she knows. Periosteal elevator. And these are instruments designed to go next to the bone and elevate the periosteal layer. And by staying next to the bone and elevating the soft tissue around it, it keeps you safe from wandering -- there's an orthopedic saying that bone is home; that if you're along the bone, there are not nerves and arteries that are glued up right on top of the bone. So if you stay on top of the bone, you're safe. And that's what the elevators, for short, the periosteal elevators are used for. Q. Excuse me for interrupting, but when you were removing the large posterior loose body from the 164

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posterior of the knee, what instruments did you use at that time? A. Really all we do is use some sort of grasper or forceps or croaker device, essentially an extension of our fingers to reach back and just kind of in a tweezer, hemostat fashion just grab and pull out while we expose the knee into flexion. Q. All right. Thank you. I'm sorry to have interrupted you. A. And then at this point -Q. We are now in the paragraph that starts out "at this point"? A. Well, there is actually -Q. The penultimate paragraph. MR. DEUPREY: I think you're at "posteriorly along the femur and tibia." MS. MULLIGAN: That's the paragraph above it. Okay. Excuse me. THE WITNESS: At this point in time it seems that our bone resections and the releases and our techniques have worked reasonably well so that we don't need to do anymore. I guess the only protective thing to the artery and vessel at this point in time is that we don't need to go there anymore. 165

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BY MS. MULLIGAN: Q. So if I understand correctly, there were two times during the course of this procedure that any instrument passed in the posterior of Mr. Fagan's knee. One, to remove the loose bodies and, two, to perform the release? MR. DEUPREY: Ambiguous. BY MS. MULLIGAN: Q. Did I describe those correctly? A. Well, the most common instrument we insert into the posterior of the knee is a blunt -- what we call a PCL retractor that helps to sublux the tibia forward on the knee, and it is placed centrally in the box cut area which is also where the artery and nerve would reside centrally in the knee. So it serves a couple functions. No. 1, it's inserted parallel to the artery and nerve and it's inserted next to the bone and it's blunt. So not only does it -- is it inserted safely because it's blunt and it's routinely used, then you can leverage on it and move the artery further away. And in addition to which the retractor itself has now put a piece of metal right into the middle of the tibia posteriorly which serves to protect against any injury to the artery or nerves. That is probably the most commonly-placed instrument posteriorly. 166

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Q. You have talked about all of your work being intraarticular. Was this blunt retractor also totally intraarticular? A. Yes. Q. The grasper intraarticular? A. Yes. Q. The elevator intraarticular? A. Yes. Q. Are there any other instruments used at any time near any portion of the posterior of Mr. Fagan's knee that we have not discussed? A. There is a saw that we use to resect the top of the tibia, and you make your cut anterior towards posterior. You have the retractors, several retractors in place to protect the posterior, but also it's custom and practice to stop slightly short of the back cortex and then release with an elevation technique where an osteotome, the last portion of the wall, to sort of flip it up and get it out of the way in a safe manner. Q. Is there a potential for this saw to transect the popliteal artery in the posterior portion? A. I would have to answer yes to that question; that the saw blade itself is typically as wide or wider than my thumb, and it oscillates side to side like this as it cuts, so its excursion is about so wide 167

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(indicating). Q. "So wide" being a couple of inches? MR. DEUPREY: Well, I'll highly disagree with that. THE WITNESS: A couple of centimeters I would say. BY MS. MULLIGAN: Q. By point of reference, can you put a pen next to the measurement -A. I'd say that the blade is typically about as wide as this marking pen, yes. There is some slightly narrower or some slight wider, but about that. And when it cuts it goes side to side. That's how it sweeps and cuts. So its path of cutting is probably slightly wider than the width of the blade as it goes back and forth to cut. And, yes, if you plunge with that device, it is -- it would put the -- not only the popliteal artery, but the vein and the nerve all at risk if you were to plunge deep enough. And what protects us is a bunch of the retractors, besides not just plunging through the cortex, but retractors posteriorly in the knee. Remember, in the middle there is a PCL retractor that is as wide as perhaps my middle finger as it inserts over the back. 168

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So now you have this excursion blade, and it's very difficult for that blade to penetrate back into an area of danger because of the excursion -- because of the metal piece protecting it. In addition, there are retractors. And then we talked about how you don't break through the posterior cortex and you lever up and crack the posterior cortex instead of plunging. So those are all the standard techniques that we use. And that comes up because you're asking me about what else goes posteriorly. And, yeah, I suppose if you don't have the protection, that you could have a risk of severing in a transverse fashion -- because the saw blade is going like this -- the artery, the nerve and the vein in one fell swoop because of the excursion of the blade. Q. And the saw is outside this intraarticular -A. The saw is meant to be intraarticular, but since the saw blade does cut, it has the potential of going extraarticular. Q. Have we now discussed all of the instruments that at any time during the course of your procedure passed anywhere near the posterior of Mr. Fagan's knee? A. I think so. There are some pins used in a jig when we cut that are aimed anterior to posterior, but they are not long enough to penetrate into the posterior. They are aimed in that direction. 169

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 aneurysm?

We have talked about different retractors. I think that's about it. Q. Now, is there anything about Mr. Fagan's presentation as you saw it either on February 9th, 10th or later that makes you think that it was inconsistent with the type of dissection injury that we talked about earlier today? MR. DEUPREY: Are you talking about the

MS. MULLIGAN: The dissection injury that led to the occlusion that led to the aneurysm that led to the intimal injury. MR. DEUPREY: Intimal. MS. MULLIGAN: Intimal. MR. DEUPREY: I think you have got it backwards, but anyway -MS. MULLIGAN: I'm sorry if I misstated your testimony. MR. DEUPREY: I think you started with an intimal tear leading to a dissection. MS. MULLIGAN: Why don't we get it right. Q. Doctor, one more time. And I've written it before and I'll write it again. Can you describe the sequence of events as you understood it from Dr. Rayan that most likely explains 170

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what you thought was the cause of the ischemia as of your initial consultation with him during his first surgery of Mr. Fagan. A. I think I have explained it somewhat in terms of what we talked about there, but to, I guess, summarize it again and explain it, it was my feeling that -- and Dr. Rayan concurred at the time of the first operation -that a transsection would have acted differently. Besides an experienced knee surgeon knowing that it happened at the time of the operation for -- besides all the protections we talked about, you would not get the good pulses that were found distally even with some collateral flow. In addition to which you would not typically get an aneurysm and thrombus the way that the duplex scan described it. And, indeed, if it were a transsection with continual bleeding, one would think that a surgeon like Dr. Rayan would not leave a bleeding vessel in the back of the knee without tying it off or doing something. So for those reasons we don't think it was a transsection. And Dr. Rayan did not act that way. The reason why we think that it was perhaps this intimal injury is that intimal injuries -- transsections and arteries are -- I mean the popliteal artery is the main artery to the lower leg. Yes, there are some small collateral flows, but it is the main highway, the main 171

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route. It is the Highway 5 along the coast, let's say, if we are going north and south. With that out, you have got lots of problems. The flow problems for the transsection I believe would have come up much sooner and not have resulted in the postoperative and recovery room finding of normal pulses. In addition to which an artery that was in theory transected at late morning -- whenever -- during the heart of the surgery would show up a lot earlier. The theory of the intimal tear is something that takes longer to progress and come to fruition. Intimal tears can happen for any number of reasons. Torsional injuries of the artery, an artery that's shortened that now is stretched because of the motion and there is a crack in the intimal lining. Intimal tears -- the artery has an outer layer and an inner layer, and it's sort of two layers, I guess. And if you have a tear to the intimal layer, this is what can lead to a dissection in terms of medical terms, which is a separation of the inner and outer layer of the arterial wall. And if it continues to dissect -- and the reason why it dissects is that blood flow continues to push down on the injury to the wall and the flow of blood is coming in this way. And if there is a tear in the lining, the flow of blood keeps creating this false lumen and sort of can trapdoor the vessel 172

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shut. I don't know if I'm -MR. McCABE: You mean the flap? THE WITNESS: Yes, pushes the flap, so to speak, into the -- and I'm sorry. I'm using my hands here. I don't know if I'm getting it across. MS. MULLIGAN: That is okay. We appreciate it. THE WITNESS: That dissection -- there is two walls here and there is -- well, really it's like this, but I'm showing you this wall and this wall, and there is layers. And if there is a little hole in the layer here, as blood keeps coming down, this layer keeps opening, opening, opening, opening, opening, opening. Eventually it can trapdoor shut. And this is the dissection process. And this takes some time to occur. And once it occurs like this, then this is where you get -- not being a vascular surgeon expert; I will defer -- where you can get -- the pressure now builds up because the door slams shut. This is now where you get an aneurysm, especially on the side where this wall -- this wall isn't so bad, but this wall used to be thick. Now it's lost half its thickness, and this side starts to -- what starts here like this slams closed and this starts to balloon out, and that gives us our aneurysm, and then that aneurysm starts to clot off because the blood starts coming down and it starts to pool and it starts to occlude and that 173

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gives the thrombosis. That's something that takes a period of time to happen and could explain the early good pulses that obviously later deteriorated. BY MS. MULLIGAN: Q. You were with Dr. Rayan -- I keep mispronouncing his name. I'm so sorry. You pronounce it Rayan? A. He says it Rayan. Q. Well, it's his name. I've been reading it for months, so I apologize for mispronouncing his name. You were with Dr. Rayan during his initial surgery. You have told us that. A. Yes. Q. You discussed with him the aneurysm during the course of that first surgery? A. I didn't discuss it with him the way that we just discussed it. Q. There was a discussion about an aneurysm during the course of the first surgery? A. There was a discussion as we talked about of how do we get to this dissection theory which includes the -which would encompass the aneurysm finding and others, but we don't sit here and -Q. Right. You don't need to. Was it your understanding that he found the aneurysm during that first procedure? 174

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A. It was my understanding the aneurysm was known by him and I and the treating medical personnel because it was found in the duplex scan, but it was not my understanding -- at least I did not look and see an aneurysm in the dissection. Q. But to your knowledge, Dr. Rayan was aware of the existence of the aneurysm before he started that first procedure? A. He started that procedure before I -appropriately started that procedure before I had any conversation with him. You know, I wasn't there when he started his procedure, however -- and appropriately he did -- it is my natural assumption from medical knowledge that a duplex scan is a vascular flow study. It is completely within his realm. He knows it was done. He was called based on the abnormal duplex scan in for a consult and then proceeded I believe with an angiogram. So I would be quite surprised if he didn't know what that was. Q. I just wanted to make sure I understood. At some point, either during the first procedure or immediately after the first procedure but before the second procedure Dr. Rayan performed, you had a discussion with him about an aneurysm? A. I believe my discussion was about the findings 175

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of -- in this patient, the course of the injury in conjunction with the duplex findings and concluding that dissection was likely the cause leading to all those things, including an aneurysm. But I don't know that we sat and talked about, well, there was a 4.4 centimeter aneurysm and he wrote -- aneurysm wasn't the focus of the conversation. Q. But the existence of the aneurysm was known to both of you during the course of that first surgery? A. The existence of the aneurysm -- I guess I can't speak for Dr. Rayan -- I assume was known by Dr. Rayan, much like if there are any flow studies to a vascular surgeon, whether they be angiograms or duplex studies, are sort of like X-rays to orthopedists. And, you know, I certainly know what the X-ray shows before I do an orthopedic surgery. Q. I appreciate your explanation, but I'm not sure you answered the question, so I apologize. I'm going to go back over it. Earlier today I thought you told me about your discussion that took place with Dr. Rayan intraoperatively of the first procedure and you described what he believed caused Mr. Fagan's ischemia. Do you recall our discussion in that regard? A. Yes. 176

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Q. And he used the word "aneurysm" in that discussion? A. I think the word "dissection" was probably the one that was used and it -- that's what I charted. And the dissection, indeed, can lead to the aneurysm, but I believe the dissection was the used term as the pathology. Q. So when you recall the conversation now with Dr. Rayan earlier this morning about the sequence of events with the dissection causing an aneurysm causing intimal injury, you're not sure if the word "aneurysm" was ever used? MR. DEUPREY: Again, I have to object. The way you have kind of pieced all of these events together it assumes facts not in evidence; it's argumentative, compound. THE WITNESS: To try to explain it again, it is the intimal injury that leads to the dissection phenomenon that leads to the flap and the occlusion, and then the aneurysm is the after effect of the occlusion and dissection. So did we sit and -- I don't remember specifically talking to Dr. Rayan saying, look, an aneurysm caused this problem, an aneurysm caused this problem. An aneurysm resulted as a result of the 177

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dissection problem, and it was the dissection of the intimal injury causing the flap that caused the problem. And so that's why I think my chart notes appropriately reflect that dissection as the cause of what was going on. BY MS. MULLIGAN: Q. Was the word "aneurysm" used by Dr. Rayan at any time either during the first operative procedure or in his discussions with you after the first procedure and before the second procedure? A. Do I remember the specific sentence where he mentions the word "aneurysm"? I don't know that I could say that. Do I think it was part and parcel of the discussion in a somewhat peripheral way the way I have explained it? Yes. Q. Did you have any discussion with him at any time about why the aneurysm was not repaired during the first procedure? A. Specifically, no. Q. Generally? A. Generally I was glad to have his help. I was glad that he was there. I was glad that he was doing what he could to salvage a difficult situation. I did ask him about going into the popliteal area posteriorly, and he indicated that it was a quite swollen, difficult 178

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dissection, and that because of all of the swelling and the chronicity, he would have a hard time digging into that area and chose not to do so. And it was his feeling -- and he demonstrated to me how doing his bypass graft from higher up on the popliteal to -- would more than establish flow with the demonstrable pulses distally, and he felt that that was the way to go. And at the time as -- him as the vascular surgeon expert, I had no reason to contradict him otherwise. I did encourage him, well, what about going into the suspected area? And he says, no, this is the way to go. Q. When did this discussion take place? A. In the first surgery. Q. The suspected area being the area where there was an aneurysm on the duplex scan? A. You know, I'm not a vascular surgeon, but I think if you're looking for the problem, that it would be perhaps more complete and/or intellectually satisfying to go right into the -- and find the aneurysm at end and something and see it. What Dr. Rayan chose to do -- and I observed -was that for his judgment reasons as a vascular surgeon and a good vascular surgeon, he decided that it was -- it would be more harmful to the patient to dig into the area. Not trying to speak for him, my -- the swelling he 179

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said was quite severe and that potentially more harm than good could be done by going into the area of all -- of a lot of swelling, because as you perform surgery and expose further and/or deeper in the popliteal area -remember, there are nerves that were still functioning in that area that could be damaged. And it was Dr. -- I asked him about it as a general category, but when he expressed confidence that we didn't need to do and that it was difficult and that he had the problem solved, I believed him. Q. This was all a discussion during the first surgery? A. This was all during the first surgery, yes. Q. Any other doctors present other than you and Dr. Rayan during that first surgery A. I don't recall any other surgeons present. Q. Is there anything else that was discussed with Dr. Rayan -A. There was a doctor -- sorry -- just to be complete -Q. Yes. A. -- present. Dr. Sedwitz called into the OR and was either in theory on his way down or thinking about coming down, and there was a discussion between Rayan and Sedwitz. So there was no one else physically present 180

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that I saw, but Dr. Rayan was -- had spoken to Dr. Sedwitz on the telephone. Q. Do you know the sum and substance of that conversation? A. They talked about some vascular terms and they essentially -- Dr. Rayan's message to him was thanks for calling me back; I think I've got it; we're good. I believe the context was that Dr. Rayan was having some trouble because of the swelling and the difficult situation to get in back of the knee, and he needed to get flow back, and he felt like he solved it by doing his bypass and demonstrating flow and felt that was good and told Dr. Sedwitz that he had it all under control. Q. Is there anything else that you recall of any discussions either between you and Dr. Rayan or that you overheard Dr. Rayan having with anyone else during the course of that first procedure? A. I think I've told you about most of it. If there is something else that jogs my memory, I'll be happy to contribute it. Q. Is there anything that you recall of your discussions with Dr. Rayan after the first procedure and before the second procedure that we haven't discussed? MR. DEUPREY: It's ambiguous. 181

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THE WITNESS: At some point in time I was notified -- and I don't recall specifically if it was Dr. Rayan in a voicemail or a nurse -- I don't remember -- that -- basically that Tom Fagan was being taken/already back in the OR because he, quote, "dropped his graft" or that he did not have a distal pulse. That was probably around the noon hour that I got that message. BY MS. MULLIGAN: Q. Where were you? A. At the rugby event. Q. You don't recall whether, though, it was Dr. Rayan or a nurse? A. I don't recall specifically, and I do believe -because it was loud where I was -- that it went to voicemail, and that's how I kind of found out. Q. Let's talk about voicemail a minute. Did you retrieve any messages off your voicemail that had been delivered to you on the evening of February 9th? A. The evening of February 9th? I don't recall either way, but I think I do get a number of different calls, you know, throughout a given day. Q. Do you recall any voicemail being left for you that you later retrieved that were regarding Tom Fagan 182

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between any time at midnight on February 9th until you arrived at the hospital on the morning of the 10th? A. I don't recall specifically. There was a period of time there where I was fairly constantly on the phone either with direct texting or by talking to other physicians and medical personnel attempting to manage Tom Fagan's care that I may have missed a call. I certainly do not recall checking the voicemail and seeing that there was a message left for me three hours earlier. There may have indeed been a voicemail or two where I'm on the phone and I can't get off and it clicks over to voicemail and I'm getting it and calling back. Q. Do your recall a situation where your voice mailbox was full at any time on the evening of the 9th or morning of the 10th? A. I do not recall that. Once A.J. notified me I was fairly continuously with the phone in my hand in some way, shape or form. Q. Other than your cell phone number, did you leave any other phone number for anybody that was caring for Mr. Fagan at any time on the 9th or the 10th? A. The standard hospital protocol is to call my office, and there is a paging service that will notify people and respond. As a matter of course, I've always told my staff to try and expedite that process by leaving 183

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them appropriate phone numbers as a double backup, but also as a more direct way to get in touch with people. Q. What other phone numbers would have been left with the answering service for you on the evening of the 9th and morning of February 10th other than your cell phone? MR. DEUPREY: That calls for speculation. You can go ahead and try to respond. THE WITNESS: There is a paging service that has a protocol of notifying people, and it is through the office number. And that is actually what's recorded in the hospital I believe as the primary contact method. However, in reviewing the chart I did see that Mr. Durfee very appropriately left his cell phone as a more direct method to bypass the paging system. BY MS. MULLIGAN: Q. Now, other than being at your house in La Jolla to change, in your car driving to your mother's house, at your mother's house in Los Angeles, and then coming back to the hospital, were you anywhere else at all -restroom breaks, restaurant breaks, anything of any nature -- between midnight on February 9th and, say, 7:00 a.m. on February 10th? MR. DEUPREY: Did he go to the bathroom between midnight and 7:00; is that -184

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MS. MULLIGAN: If he did it at a gas station, I'd like to know about it. MR. DEUPREY: If you can remember, Dr. Chao. THE WITNESS: I don't recall, as we talked about earlier, the specifics of a Friday night a year and change ago. Unfortunately I couldn't tell you whatever February 9th or whatever the closest Friday -- the first Friday in February of this year where I was or what I did most likely. I know that there were some rugby functions that week. It's quite possible there was a rugby function of some sort that Friday night early on. It's quite possible I went to the hotel in Mission Valley. And it's quite possible either that Friday or Thursday that I went to a rugby-related event. It's also quite likely, since I am single, that -- I don't cook much at home. I would say it would be somewhat surprising if I didn't get some food somewhere along the way at a restaurant or somewhere, but I don't recall where. BY MS. MULLIGAN: Q. Did you sleep at all the evening of the 9th and before you got back to the hospital at 7:00 a.m. on the 10th? A. Sleep? No. I mean when you look at it and say sleep, did I -- when I got to Los Angeles, did I, you know, lay down and have the phone in my hand, yeah, I 185

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think I did. Before I left for L.A. and made the decision was I laying down in my bed perhaps with the TV on and -- okay -- let's gather up and go? Yeah. Did I sleep as in -- no, I didn't sleep as in get a rested night in any way, shape or form. Q. Let me go back to that injury that I've got to learn how to pronounce between now and trial. Intimal. I keep thinking of like Entenmann's cookies, but am I now getting it right? Intimal? A. Sure. Q. Thank you. Of the various ways that such an intimal injury could occur, you have given a host of possibilities. Did you ever come up with the most likely cause of the intimal injury that you believe Mr. Fagan had? A. I think there are some potential causes. Any time you have a contracture and angular deformity that vessels can be in cased in scar; vessels can become more brittle. During the exposure we put the knee obviously into positions that he hasn't achieved in awhile in terms of extension and flexion because the contractures come up over time. In essence if you're someone who is not really flexible and haven't touched your toes in a long time, if you're all of a sudden able to touch your toes 186

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and stretch to touch your toes, you are likely to stretch some things. There -- with retractors and with exposures there are perhaps ways to -- if arteries are brittle, to have them be injured. I'm not sure what was the one thing that may have done something. Q. I'm confused. I thought an intimal injury is from the inside of the artery going out; is that correct? A. Yes. Q. Isn't a problem with the retractor from the outside puncturing or going in? MR. DEUPREY: Well, I'm going to object that it assumes facts not in evidence. He hasn't stated that a retractor damaged the artery directly. THE WITNESS: If -- the walls of arteries are kind of like -- I got to go with another analogy. MS. MULLIGAN: Not football. THE WITNESS: Not football. In an earthquake the wood house stays standing and the concrete house falls down. A brittle artery -if the lining interiorly is brittle in some way, shape or form, an external force can do no damage externally, whether it's a blunt retractor or certain flexion angles or stretching that can cause an injury to the inner lining. 187

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BY MS. MULLIGAN: Q. Off the various possibilities did you have any opinion as to the most likely cause of Mr. Fagan's intimal injury? A. Being that his case was one that required fixing his flexion contracture and angular deformity, my thought process would be it would be something related to the contractures that he had. Q. Now, how often have you had a patient that had an intimal injury that you are aware of following a procedure? A. I would imagine that intimal injuries probably happen more often than we know, because it is quite possible to have an intimal injury and have it repair itself over time and never know about it. So I can't tell you for sure how often that perhaps I've had an intimal injury. Q. How often are you aware of it occurring in your patients? A. Probably I have experienced it on a couple of occasions. Q. But not that common? A. Not that common. Q. And you talked earlier about -- what was it -4,000 knee surgeries? Did I get that number right? 188

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A. I think I said thousands. I don't know that I said four. Q. Thousands. Can you give me an estimate of how many knee surgeries you have done of any type? MR. DEUPREY: Of any type? Okay. From very minimal to big surgeries? MS. MULLIGAN: Well, he said thousands before. I didn't know what was included then. MR. DEUPREY: Does a procedure include a manipulation? I don't know. It's ambiguous, but go ahead, Doctor, and just do the best you can. THE WITNESS: I'll try to do some calculation of math in my head. Finishing -- doing orthopedics since 1990, let's say, so 18 years, and perhaps more knees in the later decade or more of my career than earlier, the number certainly is in the thousands. Probably more than 4,000, but probably -- well, yeah, less probably than 10,000, but in the thousands. BY MS. MULLIGAN: Q. Can you estimate total knee replacements? A. Okay. Multiple hundreds, but probably not a thousand. I mean, let's say, 500 would be more fair than 1,000. Yeah, 500 might be more fair than a thousand. I don't know the exact number. 189

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Q. 500 is your best estimate for total knee replacements? MR. DEUPREY: It's a difficult question. THE WITNESS: I was just about to say, you know, it might be a guesstimate. I'm just saying that I certainly do -- you know, certainly do 50 a year for the last, you know, ten years, let's say, approximately, give and take and whatever. I'm saying okay; that is about 500. I may be under; I may be slightly over, but it's not a decimal point off. BY MS. MULLIGAN: Q. It's a range. And you mentioned that there is various ways to perform a total knee replacement. What do you call the type you did on Mr. Fagan? Was it anterior to posterior or is there some other description? A. Well, there are different types of total knee replacements and partial replacements. His in the general category of a total knee replacement. And there are -- there are two-door cars and four-door cars and fully-loaded cars and bare-bones cars, but they are all cars, and it's the same thing in total knees. Q. Okay. So of the 500 procedures that you have done they generally, more or less, have been of the type and nature that you did in Mr. Fagan? 190

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A. As a general knee replacement category, yes. Q. Now, other than knee surgeries, what other types of surgeries have you performed in -- is it 18 years? Has it been more or less a constant in the last 18 years or has it changed? A. No, it's probably varied some. Q. Okay. Can you describe for me what other types of surgeries you do? A. What other types of knee surgeries? Q. I think you told us all totaled, somewhere between 4,000 and 10,000 knee surgeries, and of that approximately 500 or more were total knees, right? A. Okay. Q. All right. So let's move aside from knees because I think we have talked globally about knees and we have talked specifically about total knee replacements. What other types of surgeries? A. Shoulder surgeries, elbow surgeries, ankle surgeries, wrist surgeries, long-bone surgeries. I used to do back surgeries. I don't anymore. Q. How long has it been since you have done backs? A. At least a decade. Q. All right. In the last decade -- you mentioned a hip surgery -191

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A. Oh, I forgot hips. Sorry. Q. That's okay. So other than knees, hips, shoulder, elbows, ankles, wrists, long bone, any other types of surgeries that you have done in the last ten years? MR. DEUPREY: Last ten years did you say? MS. MULLIGAN: Yes, sir. THE WITNESS: If you really get into it there is, you know, soft tissue surgeries. There has been some, I suppose, as you pars it out, pelvis cases. There has been -- I think you got the most list. Maybe an isolated unique -- for example, actually come to think of it, there is several compartment surgery cases. I don't know where you would categorize that. BY MS. MULLIGAN: Q. Was the compartment one of an extremity? A. Yes. Q. Estimate for me how many compartment surgeries you have done. A. Not a ton. Probably -- certainly I don't -- I can't recall anymore than single digits. They are not very common. Q. That's in the last decade? A. Yeah. I mean not -- less than one a year is probably what happens with that. 192

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Q. So if we wanted to generalize and lump in all of the knee surgeries of any type and all of the other -hip, shoulder and elbow and ankle -- all the surgeries you have done in the last ten years -- can you give me a range how many you think you have done? A. In the last ten years? Q. Yes, sir. A. The estimate of knee surgeries you said -- I said was probably not ten, closer to five. Most of my surgeries are -- I do more knee surgeries than anything else combined. So using that number, if we use a baseline of, let's say, five -- and that is most -- then it's certainly not ten. Then it might be 8,000; it might be 7,000. I mean something like that. Q. So your best estimate of the number of total surgeries in the last ten years is seven, 8,000, somewhere in there. Less than ten? A. I think that probably would be not too inaccurate. Q. But you're only aware of a couple of your patients developing intimal injuries following any such surgeries, correct? A. Yes. Q. Of those couple of patients that have intimal injuries, is one of them Fagan and one somebody else or 193

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are there now three? A. One would -- I believe would be Fagan. Another I would believe would be -MR. DEUPREY: Don't -MR. McCABE: We don't want -MS. MULLIGAN: I don't want names. MR. DEUPREY: Just indicate -MS. MULLIGAN: I just didn't know if it's Fagan plus two people or Fagan plus another patient. MR. DEUPREY: I think the question was you were only aware of a couple of patients other than possibly Fagan. The idea is to clarify whether Fagan was one of the two or whether he constitutes the third without mentioning any names. THE WITNESS: I think he would constitute, as you would say, the third, not in the two that were there. BY MS. MULLIGAN: Q. Were the other two intimal injuries following total knee replacements or from some other type of surgery? A. I believe they were other types of surgeries. Q. In the other two cases did the intimal injury cause ultimately an aneurysm? A. I'd have to go back and look at some records. I think one did and I think maybe one didn't or was caught 194

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early. Q. Is it fairly rare in your career to see a trauma-induced aneurysm of any type? MR. DEUPREY: Well, he hasn't said that he induced any by trauma. MS. MULLIGAN: Oh, I didn't mean that he induced it. I mean that it was caused by -- you know, following a surgery or trauma of some kind. MR. DEUPREY: Well, objection. Assumes facts not in evidence, ambiguous. THE WITNESS: I think that's a very difficult question to answer, but one would logically surmise from the numbers that you have covered that it's a fairly rare occurrence of any kind. BY MS. MULLIGAN: Q. And is it even a rare occurrence to see a transsection of an artery as a result of such intimal injury? MR. DEUPREY: Would you read that question back, please. (The question was read.) MR. DEUPREY: I thought -- did you say intimal injury -MS. MULLIGAN: I hope I got it right. MR. DEUPREY: -- or aneurysm? 195

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MS. MULLIGAN: Intimal injury. MR. DEUPREY: Assumes facts not in evidence. MR. McCABE: I'm just going to object to the term "transsection." An intimal injury is a transsection. BY MS. MULLIGAN: Q. Earlier I think, Dr. Chao, you defined a transsection as you started with one piece and it's now completely cut and now you have two pieces. Do you remember that discussion? A. Yes. Q. An intimal injury, is that always one piece into two pieces? MR. DEUPREY: Ambiguous, argumentative, assumes facts not in evidence. THE WITNESS: Not being a vascular surgery expert, I think it is possible to have an intimal injury that doesn't lead to transsection, I would think. BY MS. MULLIGAN: Q. So as you have been using these terms today, that's how I'm trying to use them. In the other two cases in your career where there were intimal injuries, did they ultimately result in transsections or complete cutting of the two? MR. DEUPREY: Ambiguous, argumentative, assumes 196

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facts not in evidence. THE WITNESS: Without going back to look at records, I think one did and one maybe was caught early and did not. BY MS. MULLIGAN: Q. Was there anything about Mr. Fagan's condition as you saw him in the operating room when you were completing the surgery that is inconsistent with him having suffered such an intimal injury? MR. DEUPREY: It's ambiguous. THE WITNESS: Well, probably -- that is a very hard and broad question. I think Mr. Deuprey is right about ambiguous, but it's -- the main thing that I guess potentially would be inconsistent is the fact that we don't -- or I don't know how -- and there is no way that I know of to prove how the intimal injury -- the minute it happened or where it happened because you don't see a change. You see a transsection; you see bleeding; you see results. An intimal injury typically you wouldn't necessarily see or know. So if you say is there anything that's inconsistent, I'm not sure how to answer that question because it's kind of like proving a negative. It's a hard thing to do. MS. MULLIGAN: Fair answer. 197

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Q. With respect to a transsection, you said you would see blood? A. Yes, I believe so. Q. And have you ever had what you knew to be a transected artery during the course of any of the surgeries that you were performing? I'm not talking about patients making claims after the fact. Have you ever been in a surgery and said, "Shit, that artery is transected; I've got to do something"? A. Yeah, that has occurred. Q. With what frequency have you seen transected arteries, any artery? MR. DEUPREY: No matter how large or small? MS. MULLIGAN: Yes, sir. THE WITNESS: Well, if you want to say no matter how large or small, thousands upon thousands, because by definition arteries in some way are cut with almost every surgery that we do. I don't think that's what you were trying to -BY MS. MULLIGAN: Q. No. Thank you. With respect to inadvertent transsections or cutting through an artery, with what frequency have you seen that happen? 198

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A. There are quite a number of -- defining "arterial" as -- for lack of a better term -- left-sided heart symptoms, there are lots of arteries if you call them arterials or as they get smaller that get transected in a surgery that may or may not be intended but are understood this is what you do to do a surgery. Q. If it's left-sided versus right-sided or if it's a major artery versus not a major artery, it may respond in a different way when it's transected? A. Yes. Q. Some are spurting? A. It depends on a lot of things. Q. How about with respect to -- this was a right leg surgery, correct? A. Yes. Q. How about with respect to a right popliteal artery; had you ever seen one inadvertently cut either when you were the surgeon or when you were assisting someone else in surgery? A. I have. Q. And how did it respond? A. It bled. Q. Is it that -- can you describe it more -- is it the type that would profusely bleed, gushing in the air -- I don't mean to be gross, but is there something 199

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about a left-sided popliteal artery that -A. Let's back up for a second. I didn't mean to confuse you with right-sided and left-sided. I didn't understood what you were getting at and I don't think you understood what I was getting at. Q. Okay. A. There is no significance to it being his right leg versus his left leg. Q. Okay. You used the left side and I knew the heart pumping and I thought don't even go there. Just say right and left. So with respect to the popliteal artery, whether it's on the right or left, it's going to behave the same way? A. Yeah. I'm sorry for -- essentially -- this is where medicine -- I apologize. I should have been more clear. What I meant by left-sided meant left side of your heart. The oxygen inside of the blood, the high flow system, the arterial in the global sense system versus the right side which is the return system. So theoretically the left side is the outgoing system and the right is the return system. Now, clearly in your left leg you have out and return and in the right leg you have out and return, so maybe that wasn't a good way of describing it. It was a 200

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shortcut that I probably shouldn't have taken that took us down -Q. I should have asked for clarification. I apologize. So your testimony is whether it's the right popliteal artery or the left popliteal artery, it's going to behave more or less the same if it's transected? A. Correct. An artery in either side is going to behave in a generally similar fashion. Q. Is it going to depend upon where it's cut? A. Probably with -- not only would it depend on where it's cut, but how it's cut. Q. Why? A. Well, a cut through and through immediately is going to behave differently than a partial cut. Different partial cuts, depending on whether it's longitudinal or transverse and where it is and how motile it is can respond differently, so not every -- not to be grotesque here, but not everyone who slashes their wrist and cuts arteries dies. Q. Because it depends on where and at what angle? A. Where, what angle, how bad. There is more than -- they don't all act the same. Q. Do you have any way of knowing, either from Dr. Rayan or anyone else, whether his description of the 201

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transected artery in that second procedure -- did he mean that it was a total transsection versus a partial? MR. DEUPREY: That calls for speculation, lacks foundation. THE WITNESS: Repeat the question. MS. MULLIGAN: Sure. Q. Based on your discussions with Dr. Rayan or any other information other than what you heard from your attorney, do you know whether Dr. Rayan found a partial or a total transsection in that second surgery? MR. DEUPREY: Same objection. THE WITNESS: I wasn't in the second surgery. I suppose I would let the record speak for itself. BY MS. MULLIGAN: Q. You don't know based on your conversations with him? A. It was -- based my conversations with Rayan? Q. Yes. A. We were still on the conversation we talked before about how the intimal injury, dissection, aneurysm thrombosis and then rupture could happen. I don't know that we talked about the type of transsection, so to speak. If you still have more -- this is about the third one that I have gotten on my phone. 202

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respond.

MS. MULLIGAN: Would you like to take a break? THE WITNESS: If you that's okay. MS. MULLIGAN: Oh, absolutely. VIDEOGRAPHER: Off the record at 4:07. (Recess taken.) VIDEOGRAPHER: Back on the record at 4:34. BY MS. MULLIGAN: Q. Doctor, we were talking about how arteries might respond if they had been either partially or completely transected. With respect to a popliteal artery, can you give any general description of what you would have expected if it had been a partial transsection? MR. DEUPREY: Ambiguous, but go ahead and try to

THE WITNESS: Yeah. I think it is somewhat ambiguous as to the type of transsection, the percentage of partial, the orientation, is it a healthy vessel, a diseased. You know, is it -- you know, there is all sorts of factors. MR. DEUPREY: Is this a question in general or about Mr. Fagan? MS. MULLIGAN: In general. MR. DEUPREY: Okay. Thanks. Go ahead. BY MS. MULLIGAN: Q. You have completed your answer? 203

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A. Multi-factorial, yes. Q. Now, with respect to Mr. Fagan, is there anything that you have learned during the course of any time you were treating him that led you to conclude that he had a pre-existing diseased popliteal artery? A. I don't know that I personally had any doubt to that effect. Q. So it's not that Dr. Sinclair or Dr. Rayan or anyone else told you that there were some underlying problem with Mr. Fagan's popliteal artery before you performed surgery on the morning of February 9th? A. I think there have been theories and thoughts that it may have been the case, but I'm not personally aware that, look, here's a piece of his artery that was sent to the pathology lab, and, look, it shows that it's diseased. I'm not aware of that. Q. Are you aware of any of his treating doctors doing any testing of any nature that led them to conclude that it's highly likely he had a diseased popliteal artery prior to the February 9th total knee replacement? A. There was some talk about how his -- there was some talk about there had to be some reason where Dr. Rayan's bypass surgery didn't work or really wasn't working, and there was some talk that there was some reason that he had to continuously be anticoagulated, 204

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otherwise he would drop his graft and lose his pulses. I don't know what the conclusion was, but there was some talk that something is not what we typically see, i.e., Dr. Rayan's graft typically should work. Q. And who -- who is doing this talking? Which physicians? A. I think Dr. Rayan did some of the talking. I think some of the hospital intensivists did some of the other talking. Q. Is Dr. Sinclair the hematologist one of those physicians? A. Dr. Sinclair did participate in some way in the talking, especially with the anticoagulation issue. Q. And can you identify for me any of the other treating physicians that partook in this discussion at any time? A. Maybe if you helped me with some of the names. I might have to go back and look at the records to recall. Q. Let's leave a blank in the record, and as we go through progress notes and subsequent depositions, if you identify or refresh your memory as to who those physicians are, would you please let me know? A. Sure. And the reason why I don't fully remember is a little while ago -- and also there were the -- there 205

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were a number of people, as you know, in the records that took care of him, and a lot of the intensivists rotated on a weekly basis on and off, on and off. So there is a number of different people. That's why I don't recall exactly. (Information requested: BY MS. MULLIGAN: Q. Okay. We may refresh your recollection as we go through it. So as you sit here today are you saying that given the variety of different factors, you can't describe what you would have expected Mr. Fagan's symptoms or presentation to be like if in fact he suffered a partial transected popliteal artery during your total knee replacement? MR. DEUPREY: Compound, ambiguous, assumes facts not in evidence, argumentative. THE WITNESS: I think it's an incomplete hypothetical situation, so I think it makes it hard for me to answer. BY MS. MULLIGAN: Q. Okay. So with respect to Mr. Fagan, did you check his lower right extremity pulses at any time after surgery? A. At what point in time -- yeah, a lot. 206 )

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Q. At any point in time before you walked out of that operating room, having concluded the surgery, did you check Mr. Fagan's pulses? MR. DEUPREY: It's ambiguous as to, quote, "after completing the surgery," end quote. Go ahead and try to responds. THE WITNESS: I'm not sure what you mean by walked out of that operating room. My usual custom and practice with the physician assistants and/or other orthopedists that help me is I do every part of the surgery itself, but when it gets to some of the closures and superficial closures and dressings, that my assistants will take over. And what I then typically do is go and sit down with the family and talk with them about -- give them an early word, tell them we are still in the OR, we are finishing up, but the work is done; this is where we are at; this is what we are happy with and this is how it went. And then I would typically check my office and see what is going on there, and messages and call in and do any chart work at the hospital or rounding as necessary. Then I would come back. If it's a short period of time, they may be just finishing in the operating room and I would walk back into the operating room and do a final check that would include pulses and 207

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toe wiggling, etcetera. If it was a quick closure and I actually had a longer discussion with the family or something else to do, I might swing by the recovery room on my way out before I would change and do the same thing. BY MS. MULLIGAN: Q. Do you have any independent recollection of what you did in Mr. Fagan's case? A. I don't recall specifically which one he fell under. Obviously I do numerous surgeries, and, you know, I certainly would remember it if I went and felt his pulse and went, "Oooh, there is no pulse." That would trigger a lot of things. But it was routine, so I don't remember if it was a check that went back in the operating room or a check as I went out the door in the recovery room. Q. Do you have any independent recollection of checking his pulses at any time on February 9th following the surgery? MR. DEUPREY: I think it's been asked and answered. THE WITNESS: I explained my custom and practice and what I do, and I don't remember specifically which category he fell into. 208

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BY MS. MULLIGAN: Q. And if you checked in the operating room, Mr. Durfee would have still been present? A. Maybe. Not always. Q. Do you have any independent recollection of going back in the operating room and Mr. Durfee wasn't there but Mr. Fagan was? A. Independently no, but what typically will happen is when the operation is done and truly the dressings are on, then A.J. many times will take the chart and do the chart orders and other things and do his portion of the work, and sometimes it's done in the room and sometimes it's not. I don't remember in Mr. Fagan's case specifically whether I was in the operating room or the recovery room. So I don't remember specifically was A.J. there or not there. Q. If you took his pulse in the recovery room, it's your testimony based on custom and practice. Again, no independent recollection, right? A. Well, typically what happens is if I go in the recovery room, I will come by, and sometimes patients are quite awake and sometimes they are not quite awake. And if they are not quite awake, I will feel their pulses and try and say hello and try and get a response. Usually in response they wiggle their toes if they, you know, arouse 209

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a little bit. And if they are awake, I actually talk to them. Q. And with respect to Mr. Fagan, you have absolutely no recollection whether he was awake or not awake, correct? A. I don't recall specifically. Q. Do you recall whether he could wiggle his toes whenever you were checking his pulses? A. Well, I certainly would recall if he had something different, because, as we have gone over, the vast majority of people don't have something different, and he falls in that vast majority category. Q. So it's more or less routine if you were checking his pulses, correct? A. Yeah. Q. There was nothing alarming that would make you take extra time with him because you had no reason to believe anything had gone wrong during the surgery, right? A. Well, other than the fact that he had the extensive contracture releases. That if anything would make me more concerned to recheck him as opposed to a virgin knee that didn't have contractures and was quite standard, but nothing out of the ordinary at the time of surgery. 210

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Q. And your op report doesn't reference you checking his pulses, correct, after you completed your procedure? A. I could look at it and -Q. Yeah, please. Exhibit 9. A. Exhibit 9? The question on Exhibit 9? Q. Is there anywhere in your operative report where you describe checking his pulses? MR. DEUPREY: In so many words? MS. MULLIGAN: In any words. MR. DEUPREY: It's ambiguous. Go ahead, Doctor. THE WITNESS: We might be confused here. So you want me to tell you in this op report where I checked his pulses? BY MS. MULLIGAN: Q. Yes, sir, if it's in there at all. MR. DEUPREY: Same objection. THE WITNESS: I don't see it in there. BY MS. MULLIGAN: Q. Okay. Do you have notes anywhere in the chart that reflects you checked his pulses after the surgery was over? MR. DEUPREY: This would be on February 9th? 211

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MS. MULLIGAN: Yes. Following the procedure. THE WITNESS: I don't recall if there was one. BY MS. MULLIGAN: Q. Your testimony today is just based on what your custom and practice is? A. Yes. Q. Okay. Now, is it your custom and practice to use a doppler when you check pulses on a patient post a total knee replacement? A. Typically, no. Q. Do you have any reason to believe you used a doppler on Mr. Fagan? A. That I used one? Q. Yes, sir. On February 9th. A. No. Q. With respect to Mr. Fagan, there were orders that were lodged by Mr. Durfee about when the pulses should be checked, correct? Are you familiar with what I'm talking about, those orders? A. I believe so. Q. Are they fairly routine for you in a total knee replacement with respect to frequency of pulse checks after surgery? A. Do you have a document? Q. Yeah, I'm looking for it. 212

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 74 --

Are they fairly routine in your experience in terms of what orders you make? A. I remember looking through them, and I don't remember anything standing out. MS. MULLIGAN: We'll mark this as exhibit next in order, 11. (Exhibit 11 marked for identification.) BY MS. MULLIGAN: Q. I'm going to hand you collectively a set of these orders. MR. DEUPREY: The orders being the second page of Exhibit 11? This first page is preop physician orders. MS. MULLIGAN: Actually, I think it's the third page, Page 74, I believe Mr. Durfee told us had the postop orders regarding neurovascular checks. MR. DEUPREY: Go to the third page, go to Page

THE WITNESS: Okay. MR. DEUPREY: -- of Exhibit 11. BY MS. MULLIGAN: Q. And according to Mr. Durfee, these orders were neurovascular checks every hour for two hours, then every four hours for 48 hours, and then notify shift and PRN any changes. 213

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shift --

MR. DEUPREY: It doesn't say notify; it says Q

MS. MULLIGAN: Excuse me. Q shift. MR. DEUPREY: -- PRN any changes. BY MS. MULLIGAN: Q. And these are standard orders following a knee replacement surgery? A. Yes. I think they are the hospital standard orders. Q. And -- actually on the top it also says following hip surgery, too. Is that also the same for you following hip surgery? A. I think there is some overlap, but these certainly are the -- as it says on the top of the form, the arthroplasty orders. Q. When would be your expectation that someone would check Mr. Fagan's lower extremity pulse following your surgery? MR. DEUPREY: You mean -- someone you mean carrying out these orders? Is that what you're talking about? MS. MULLIGAN: Yes, sir. THE WITNESS: My first answer is whenever necessary. 214

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BY MS. MULLIGAN: Q. So whether you check Mr. Fagan's pulse in the operating room or whether you check it in the recovery room, did you have an expectation as to when anybody else would ever check them again? A. In terms of the recovery nurse or the floor nurse? Q. Yes. A. Yes. I would expect there to be relatively constant and consistent checking. Q. When you say check them whenever necessary, in your mind when is it necessary for a patient like Mr. Fagan to have his pulses checked? A. It's certainly necessary on arrival in the recovery room, necessary during the stay in the recovery room; it's necessary on departure from the recovery room and necessary on arrival on the floor and then necessary to medical standards. Q. So it sounds as though you're describing what might be more frequent pulse checks than what's in this Exhibit 11. MR. DEUPREY: That's argumentative, but go ahead and try to respond. THE WITNESS: Not really. I mean it's -- the check boxes vital signs say "per med/surg standards of 215

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practice." And to me that means if it's necessarily cogent, so be it. If -- with this order, especially if something is changing, that's usually not the case. And what's indicated on here is neurovascular checks every hour to begin with and then every four hours for two days, and then any shift change which means a new person taking -- a new nurse taking care of the patient and as needed PRN any changes. So what I described to you I think is consistent with what's checked. The Q shift is that, you know, when you hit the recovery room, it's essentially a new shift; it's a new nurse. It's going from the operating room nurse to the recovery room nurse. When you go from the operating room -- sorry -- the recovery room to the floor, I think that's a new shift; it's a new person. And if you happen to change nurses at midnight, I would expect the new nurse to get familiar even if it wasn't quite the correct intervals. So I think what we're describing is really about the same. BY MS. MULLIGAN: Q. How long have you had staff privileges at Scripps Memorial Hospital? A. It's probably been 10 -- a dozen years. Q. And is it your understanding, based on your practice and experience at Scripps Memorial Hospital, 216

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that when the nurses take these pulses, that they are to record them? A. Yes. Q. And that's so that later you or some other physician can go back and see what the timing or progression of the pulses are? A. And one nurse to the next, but also the same nurse who probably has more than one patient to recall the differences. Q. And in -- Exhibit 12 I'm going to hand you. (Exhibit 12 marked for identification.) BY MS. MULLIGAN: Q. It's your note from February 10th. It says 8:30 at night. Is that the time you actually made the note? MR. DEUPREY: It says a little squiggle there, about 8:30. What does that mean, Doctor? THE WITNESS: Well -MR. DEUPREY: What is that little mark in front of the number? THE WITNESS: My recollection, this being February 10th, that I spent quite awhile at the hospital that day, and I think the squiggly 8:30 is -- that's a composite time. I'm not sure if I hit the door at 8:00 o'clock and left at 9:00 o'clock or hit the door at 7:00 o'clock and wrote this about 8:30 but I was there for 217

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quite awhile, and the -- looking at his chart, talking to the patient and his fiancee and then the associated consultants and the hospital intensivists. And so -- I mean I think the document might speak for itself. It's in the early evening, and I don't know the time that I got there or that I left, but I promise you it was awhile that I was there. BY MS. MULLIGAN: Q. Midway through this report there is a line that says "pulses documented and present." Do you see that? I'll show you my highlighted version. A. Yes. Q. Can you read that sentence to me, please? A. "Pulses documented and present postop, in recovery room and on floor." Q. The next sentence? A. "Neuro intact." Q. Then just finally the couple lines after that? A. "Downhill turn about 12:30 a.m., no pulses." Q. That's fine. Now, with respect to the part where you're saying pulses documented and present postop, are you referring to pulses being documented and present post your original surgery of February 9th? A. I believe so. 218

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Q. Okay. Now, we have talked about -- sorry. They were in order -- Exhibit 6, which is the neurovascular checks, Bates stamped SMH01883, and I referenced just briefly and haven't really talked about it yet this med/surg flow sheet from February 9th, Bates stamped 748, 749 and 750, marked as Exhibit 5. Are these the documents that you're -- one or both -- referring to in your February 10th, 8:30 report when you said pulses documented and present postop? MR. DEUPREY: Do we get to have him look at the other records so that he's familiar with it to respond? MS. MULLIGAN: Absolutely. MR. DEUPREY: Okay. Well, how much time does he get to look at the other records? MS. MULLIGAN: As much time as he wants. MR. DEUPREY: Okay. Let's go off the record and give him a chance to look at it. VIDEOGRAPHER: Off the record at 4:57. (Recess taken.) VIDEOGRAPHER: Back on the record at 5:06. BY MS. MULLIGAN: Q. First of all, Doctor, let me mark as Exhibit 13 -- I am going to use the number. It's SMH -- sorry. MR. DEUPREY: Well, this says -- talking about the record in front of him at the moment? 219

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It's 741?

MS. MULLIGAN: Oh, it's a different number.

MR. DEUPREY: This is in the -- this is part of the Exhibit No. 3 from the original -- of the Durfee deposition that was accessed to get a clearer copy of a record. MS. MULLIGAN: Excuse me. If you don't minds, let's just -- it's Page 741 in the second image. The other copy had a different number and it was driving me nuts. MR. DEUPREY: The other number was a Scripps Hospital number. MS. MULLIGAN: So we'll mark as Exhibit 13 the second image record No. 741. It's a med/surg flow sheet patient assessment, 2/9/07 dated -- excuse me -- at 1750. (Exhibit 13 marked for identification.) BY MS. MULLIGAN: Q. The question that I had asked you was with reference to Exhibit 12, where it says pulses documented and present postop in RR and on floor, neuro intact, I believe you were going to tell me what you base that comment on. A. I base that comment on my understanding at the time that approximately squiggly line 8:30 p.m. as to a summary of the events that has led us up to this point. 220

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It was my understanding that pulses were documented and present postoperatively in the recovery room and on the floor, and that his neurovascular exam was intact and that he had a significant downhill turn about 12:30 in the morning. That is based on some limited review of the chart notes and based on my understanding of what happened to Mr. Fagan that night as related to my treating him, Mr. Durfee treating him and the nurses treating him. Q. So we have already testified that while there is no record of what the pulses were right after surgery, your custom and practice was to take them. According to -MR. DEUPREY: Excuse me, excuse me. I have to object, in all due respect. Assumes facts not in evidence and is argumentative. MS. MULLIGAN: Okay. Let's go around that block again. MR. DEUPREY: And also, quote, "after," end quote, as to what you mean by after surgery. BY MS. MULLIGAN: Q. Doctor, are you aware of anywhere in these records that shows your recording of what his pulses were after surgery on February 9th? MR. DEUPREY: That's not what you asked him 221

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before. I don't mean to have you go back through the whole thing. Maybe if you read the question you asked back, it will shorten things. MS. MULLIGAN: All right. (The record was read.) MR. DEUPREY: I mean your question -- to explain my objection -- is so broad that it includes what was done in the recovery room by the nurses, I mean when you say no record of any pulses after the surgery. If you're talking about no record of Dr. Chao taking pulses, I wouldn't have had an objection. BY MS. MULLIGAN: Q. Dr. Chao, there is no record that memorializes you taking the pulses after Mr. Fagan's surgery, correct? A. I don't see the affirmative record of that. Q. And with respect to anyone taking Mr. Fagan's pulses after surgery, is the first entry you're aware of that document we have now marked as Exhibit 13? A. This is 13? Q. Yes, sir. A. That's not the first document that I'm aware of. Q. Okay. Can you -- and, again, this all refers back to the fact that you had charted that pulses were noted and intact. So I'm trying to find out where you're aware of the first time the neuro postop pulse that is 222

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recorded. Or excuse me. The words used was documented and present. A. The statement that I make at that point in time is when I'm having my extensive visit with Dr. Rayan, his -- Mr. Fagan's intensivist, Mr. Fagan, his fiancee and putting all the pieces back together of what happened in the previous X number of hours in that night before or that night, however you want to define it. And I am putting together with that statement what my understanding was at that point in time. And my understanding was through my independent understanding in treating him, through A.J. Durfee's understanding as related to me and through the understandings of what had been presented to me through the nurses by positive and negative inference. The pulses I believe were documented as present in at least one postoperative recovery room record as positive. And I would fully expect if it were not the case, that that nurse or the recovery room would have notified Mr. Durfee or I at 2:00 p.m. in the afternoon assuming the patient got to the recovery room at 1:30 or sooner. There is no contact from them, and clearly in the orders, as you pointed out, that they were supposed to be followed by the nurses and reported on. In addition, that was not my verbal report when speaking to 223

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nurses taking care of Mr. Fagan, that there was no indication of any problem, and what I gleaned initially in the recovery room records. And I don't recall which specific records I went to on -- at 8:30 p.m. on February 10th, '07, but as my impression as well as my impression that they were okay on the floor until this time of approximately 12:30 which is when the first incident of problems were relayed to me. So this is a combined my treating understanding and contemporaneously where I am right now in summarizing his care and how we got there at this point in time. MR. DEUPREY: Referring to when you made the note? THE WITNESS: Correct, when I made the note at that point in time. BY MS. MULLIGAN: Q. Are you referring to any other documentation of his pulses being present in postop other than the document we have now marked as Exhibit 13? MR. DEUPREY: It's been asked and answered. THE WITNESS: Exhibit 13 appears to be a document that shows pulses strong in the upper and lower extremities, both sides, at 1750, which I believe is the moment of transition from the recovery room to the floor. I believe it's a floor-based note. Just like I was 224

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saying when someone first arrives on the floor it's essentially a change of shift and they do vitals and other things, I believe in perhaps one of these as well that in the recovery room that it was in a similar circumstance. BY MS. MULLIGAN: Q. Are you aware of documentation showing that the pulses were checked and were found to be present prior to 1750? MR. DEUPREY: He just answered that. He said he believes there is an indication in the recovery room records. MS. MULLIGAN: He's got the recovery room records in front of him. So I'm sorry to belabor the point, but -MR. DEUPREY: Let's identify what he has in front of him. Here's a page I've got, and then he's got another page, PACU records. THE WITNESS: It's always harder not to read your own writing. MS. MULLIGAN: You haven't seen my writing. MR. DEUPREY: Shall we identify those pages? MS. MULLIGAN: I haven't given them to him. I think -225

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you can.

MR. DEUPREY: Well, I just want the record to be clear what he's looking at, whether you give it to him or not. MS. MULLIGAN: Well, I can't identify it. Maybe

MR. DEUPREY: Well, it's SMH0356 and SMH03756. MS. MULLIGAN: These are the PACU postop notes? MR. DEUPREY: And in the Durfee exhibits, it's second image Page 3395, and second image Page 3394. BY MS. MULLIGAN: Q. So the question, Doctor, is are you aware of any records showing that there were pulses present at any time prior to 1750? MR. DEUPREY: I think he's answered that. Go ahead and -- just looking at records right now that we have just identified. THE WITNESS: Yes. I'm trying to find the spot on the record to let Mr. Deuprey identify it. BY MS. MULLIGAN: Q. Thank you. I'm sorry to belabor the point, but it goes back to the writing that the pulses were documented and present? A. I know I remember seeing it, and without even -Thank you. I know I saw it. Mr. Deuprey has helped me locate the spot. "All peripheral pulses 226

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palpable and strong" on record SMH03756. Q. And do you know what time that was present or documented? A. "PACU Postop" is the heading, and it says arrival time 1330. So this would be the normal course, as I said, upon hitting a change of shift or change of location, the initial note by the recovery room nurse. Q. And you're referring now to a check mark under "cardiovascular"? A. Yes, near the top of the page, "all peripheral pulses palpable and strong." Q. Without any identification as to color or whether it was warm, you would infer that those things were all true because of this check mark? A. Yes. Q. You said something about receiving a verbal report. Do you recall that testimony a few minutes ago? A. Yes. Q. Who gave you a verbal report as it related to the pulses? A. What this document is reflective of is my -like I said, my understanding at the time. The verbal report was given to me contemporaneously with my treatment of Mr. Fagan that night and in the morning. And consistent with what Mr. Durfee was telling me; that 227

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everything was fine until this downturn early in the morning or late at night, depending upon your definition, approximately 12:30 a.m. And that was the reason why we were down this compartment syndrome pathway. And this was part of my discussions that I had and related with Dr. Morikado and the nurses. Q. You actually spoke to the nurses on the floor at any time on -- say, from midnight on the 9th through to 4:00 a.m. on the 10th? A. I know I spoke to the nurses on the floor certainly in that time interval. I spoke to a lot of people during that general time interval. Q. Other than Mr. Durfee, who is the first person that you spoke with at any time after midnight on the 9th regarding Mr. Fagan? A. I spoke to a number of people that night, all in succession. I am -- I probably would have to rely on some notes to try and figure out who was exactly the first person, because I spoke to number of different people. Q. Did you make any notes whatsoever in any of those conversations that evening? A. Did I make any notes? Q. Yes, sir. A. I did not make any written notes. 228

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Q. Is your first recitation of anything that had occurred between any time from midnight on the 9th and the morning of the 10th this note, Exhibit 7, that is dated 7:00 a.m.? A. I believe that is first chart entry. Q. Did you keep any stickies, text messages, computer entries, e-mails, anything else, memorializing discussions from the evening of the 9th, morning of the 10th? MR. DEUPREY: That assumes there were any such things, but go ahead and respond. THE WITNESS: I don't recall making any written notations, but I certainly had some text messages for a while, referring to your Exhibit 7. Even on that given day I would assume that without looking at a text message, I couldn't enter at 7:00 a.m. the next morning or that morning -- depending on how you define it -- that concern -- nurse concerned about compartment syndrome at 1222. Later on 1234, and it was now worse. That has to come from my looking at my phone and saying here's the message; what time was it? Oh, that was the time the message came in. Because otherwise I would be saying at approximately 1230 we started having this occur, and I think that's the only way I get those specific times. So at some point in time I -- at least 229

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the next morning I had some text messages. BY MS. MULLIGAN: Q. Did you ever download the information from your phone onto a computer or sync it with anything technological to keep it? A. I certainly did some syncing functions with my phone through the normal course and practice, but I'm not aware of how one would download text messages. If there was a way, I don't know how that works. Q. Do you have phone bills from your cell phone for this time frame? A. Louisa Creech, the office manager when she still was employed there, looked on several occasions at my request and Mr. Deuprey's request and did not come up with any. Q. To the best of your recollection, did you use any phone other than your cell phone in any of these communications with Mr. Durfee or anyone at the hospital on February 9th and February 10th? MR. DEUPREY: Would you read that question back again. I apologize. (The question was read.) THE WITNESS: My general recollection is I only used mobile phones during that period of time. 230

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BY MS. MULLIGAN: Q. Did you use any mobile phone other than the one number that is on Mr. Durfee's phone bill? You want to see that phone number? MR. DEUPREY: 619-871-9021. THE WITNESS: That has been my main phone number, but at different points in time I have had a second phone, battery reasons, other reasons, etcetera. That is my main phone number. BY MS. MULLIGAN: Q. Did you have a second phone in February of '07? I'm sorry. A. I'm not positive. I have had a second phone on different occasions. I think I've had bad luck with phones. I'm about to change again. Q. Have you had the same service throughout? A. Unfortunately no either. Part of that may be my dissatisfaction with living in La Jolla and reception and different things, and part of that is trying to keep up with technology and what I need. Q. Turning to your note, Exhibit 7 -- that is the note that was at 7:00 a.m. -- there is some handwriting underneath the 7:00 a.m. what does that say? A. This one? Q. Yes, sir. 231

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2/9.

A. Do we want to clean some of these up so that I don't put them in wrong piles? MR. DEUPREY: I'll work on that. THE WITNESS: This is -- looks like it's here. Then I'll go to Exhibit 7. Okay. On the bottom of Exhibit 7? BY MS. MULLIGAN: Q. On the top it says 2/9/07, 7:00 a.m., and then there is some handwriting under 7:00 a.m. in the left column. A. Yes. Q. What does that say? A. This is the note, just for clarification, that in theory it really was 2/10, correct. Q. Yes, sir. A. Okay. Because before I wrote the note, I wrote

It says 7:00 a.m., then it says "start writing." Q. What do you mean by that? A. What I mean by that is I started writing this about 7:00 a.m.; that -- if you look at the first line, "First called and texted." That's an event that happened had earlier. So I guess since this note was spanning a time frame, I wanted to document what was going on, and I thought the best way to document it is to say, look, it's 232

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7:00 a.m. and I'm starting to write this. And this obviously took a little bit to write and may have not even been completely continuous in writing. So here I am and I'm writing this note, and it's a summary note of what's been going on. So I guess I was trying to be more precise at what 7:00 a.m. meant. Q. Could you give us your best estimate as to what time you actually arrived at Scripps Memorial Hospital on the morning of the 10th? MR. DEUPREY: It's been asked and answered. I can tell you what my notes reflect, but go ahead and try again, Doctor. We have already been down this path. THE WITNESS: Yeah. And as the late hour approaches, as I have indicated, I don't remember specifically the time. It certainly was before 7:00 a.m. of the time pending this note. My best guesstimate, I think, was approximately 6:00 a.m., give or take. I'm not sure. BY MS. MULLIGAN: Q. When you first arrived at the hospital can you describe for us the sequence of events of what you did? A. First getting to the hospital? Parking and changing and into scrubs and figuring out where Mr. Fagan was. Q. What made you decide to come to the hospital 233

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from L.A.? A. The fact that Mr. Fagan obviously had a significant problem, a problem that I wasn't sure that I as the orthopedist could help him with, but I as his physician should be able to be there and provide whatever assistance would be necessary. Q. Is it your statement in this Exhibit 7 that you have been told the nurse was concerned about a compartment syndrome; that communication took place at 12:22 a.m.? A. I believe so. Q. Why didn't you just turn around and drive back to Scripps Memorial Hospital at 12:22 a.m.? A. One potential reason was that I was already driving; I was already committed. And I think it was quite an unusual presentation to talk about compartment syndrome after a knee replacement, certainly one that was first signs coming up at 12:22 a.m. after a late morning surgery. Q. Have you now told me all the reasons why you didn't turn around and drive back to Scripps Memorial Hospital at 12:22 a.m. or shortly thereafter? A. I would have to think about my mindset and time frame at that point in time. Perhaps other reasons include that if I thought there was something that I 234

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could provide orthopedically to him that was unique, it would have made me turn around no matter how far I was. I think I was still assessing the situation as to what was going on at that point in time. MR. DEUPREY: I'm going to observe, you know, just for the record, that Dr. Chao has now been in this office for ten hours straight. He arrived here at 7:30 in the morning; it's now 5:30 in the afternoon. We had sandwiches in; it's been nonstop, ten hours essentially. So I don't know how much you want to push a witness, but -MS. MULLIGAN: Mr. Deuprey, I didn't ask him to be here at 7:30 and I've offered to stop this deposition at any time he needed it. MR. DEUPREY: I'm not critical of you. I'm just pointing out that maybe we are getting to a point where you should, you know, get to a good stopping place, as we've discussed about 45 minutes ago. BY MS. MULLIGAN: Q. Would you like to do that, Doctor? A. I'm amenable to the majority. I was hinting at it earlier while fumbling records and nobody seemed to take the bait, so I -Q. Can you tell us that your testimony thus far has been okay? 235

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A. I think in general, yes, but there is no question that this is not something that I'm used to or especially -- this is no offense -- but the jumping around and then trying to hop into the time capsule and the mindset at a particular time is not the easiest thing to do. MS. MULLIGAN: Okay. Let's switch -- go to a new tape and we'll just be a few minutes more. VIDEOGRAPHER: This concludes Tape 3 of the deposition of Dr. David Chao. Off the record at 5:33. (Discussion off the record.) VIDEOGRAPHER: This is Tape 4 of the deposition of Dr. David Chao. Back on the record at 5:36. BY MS. MULLIGAN: Q. Doctor, simply because Mr. Deuprey mentioned that you had been here since 7:30 this morning, which was news to me until then, and we have gone ten hours and ate lunch which was an accommodation Mr. Deuprey suggested and I appreciated, I just want to make sure. Have you given me your best testimony today? A. Other than the normal things of life where I have been a little bit under the weather and back hurting and shifting and then probably naturally losing a little bit of concentration after a long day, yeah. Q. So I just want to make sure that there isn't 236

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multiple changes to the record because of either how long we have been here or because of your illness. MR. DEUPREY: I don't know how we can assure you of that. We haven't even seen the record yet. It contains what it contains. BY MS. MULLIGAN: Q. You believe based on the questions I have asked and the answers you have given me, you have given your best testimony? A. I think I have tried to do my best. MS. MULLIGAN: Okay. Thank you. I don't have any other questions. I propose we relieve the court reporter of her duties under the code; the original transcript should be sent directly to Mr. Deuprey who will have the responsibility of having Dr. Chao review it, sign it under penalty of perjury. I'd like to be notified of the fact that the transcript has been signed and any changes that were made to it -- I'd say within 30 days, but it's entirely possible your second deposition would occur before then. MR. DEUPREY: You mean 30 days of receipt of the original? MS. MULLIGAN: Yes. If for any reason it's not available at the time 237

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of any hearing or trial or is lost, a certified copy may be used the same for all purposes. MR. DEUPREY: That's fine. I'll accept that my stipulation to relieve the court reporter of her duties is to the extent of these stipulations. MS. MULLIGAN: Right. And this is Volume I of the deposition. It's our understanding that this deposition is going to reconvene. MR. DEUPREY: Yes. MS. MULLIGAN: I just wanted to make sure. MR. DEUPREY: Thank you. I appreciate -VIDEOGRAPHER: This concludes Volume I of the deposition of Dr. David Chao. Off the record at 5:38. * * * * * I, DAVID J. CHAO, M.D., swear under penalty of perjury that I have read the foregoing, and that it is true and correct, to the best of my knowledge and belief. Signed on this day of , (City) (State) , 2008, at .

DAVID J. CHAO, M.D.

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STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO )

I, T. A. Martin, a Certified Shorthand Reporter, Certificate No. 3613, do hereby certify that the witness in the foregoing deposition was by me first duly sworn to testify to the truth, the whole truth, and nothing but the truth in the foregoing cause; that the deposition was then taken before me at the time and place herein named; that said deposition was reported by me in shorthand, and then transcribed through computer-aided transcription under my direction, and that the foregoing transcript contains a true record of the testimony of said witness. I do further certify that I am a disinterested person and am in no way interested in the outcome of this action, or connected with or related to any of the parties in this action or to their respective counsel. IN WITNESS WHEREOF, I have hereunto set my hand on this 30th day of May, 2008.

T. A. MARTIN Certificate No. 3613

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