SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU : TRIAL TERM PART X. Plaintiff, Defendant.

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU : TRIAL TERM PART X BYRON KJONO, Plaintiff, -against- BARBARA J. HELD, Individually and as Administratrix of the Estate of MORTON L. HELD, Index No. /00 Defendant X Mineola, New York 0 June, 0 B E F O R E: HON. JEFFREY S. BROWN, Justice, and a Jury. A P P E A R A N C E S: CORY J. ROSENBAUM, P.C. Attorneys for Plaintiff West th Street New York, New York 00 BY: CORY J. ROSENBAUM, ESQ. PICCIANO & SCAHILL, P.C. Attorneys for Defendant 00 Merchants Concourse, Suite 0 Westbury, New York 0 BY: FRANCIS J. SCAHILL, ESQ. Patricia A. Tauber, RPR Official Court Reporter

2 Kjono v. Held 0 0 (Following ensued in the absence of the jury.) THE COURT: Counsel, I understand that, Mr. Rosenbaum, that during the course of Dr. Radna's testimony you're going to be showing a film of the surgical procedure. MR. ROSENBAUM: Yes, your Honor. It's a -- the doctor will be running the visual. It's actually a -D video and, as part of the stipulation earlier on in the case stipulating the dozens of records, Mr. Scahill has graciously stipulated that plaintiff can use the -D video, as well as the three boards that are in evidence. There are also a couple of other still photographs and reports that are part of the records. Mr. Scahill is also graciously permitting plaintiff to use those. THE COURT: We have enough of the -D glasses for the nine jurors, as well as Mr. Scahill and myself? MR. ROSENBAUM: Yes, your Honor. I think there might be an extra pair or two, if the Court staff want to look on as well. THE COURT: Any objection, Mr. Scahill? MR. SCAHILL: No. THE COURT: All right. We'll proceed. Let's get the jury. Off the record. (Off the record discussion ensued.)

3 Dr. Radna/by pltf/direct 0 0 COURT OFFICER: Jury entering. (Following ensued in the presence of the jury.) THE COURT: Please be seated, everybody. Good morning. Hope everybody had a nice weekend. We're ready to continue with the trial. Mr. Rosenbaum, you want to call your next witness, please? MR. ROSENBAUM: Thank you very much, your Honor. Dr. Richard Radna. D R. R I C H A R D R A D N A, having offices at Park Avenue, New York, New York 0 and - Central Park Avenue, Yonkers, New York 00, having first been duly sworn or affirmed, upon being examined, testified as follows: THE CLERK: Jury is to your left. Please testify with your voice up and nice and clear so they can all hear you. THE WITNESS: Thank you, sir. THE COURT: Good morning, doctor. THE WITNESS: Good morning, your Honor. THE COURT: A little bit of housekeeping before we begin. Not only does the jury have to hear you, but everybody in the room has to hear you. THE WITNESS: Yes, sir. THE COURT: All right. Also, anything you

4 Dr. Radna/by pltf/direct 0 0 don't understand, let me know. I'll have counsel rephrase it. Counsel also have an absolute right to ask you yes or no questions. If they do so, you should try to answer that way. If you can't, let me know, either counsel will rephrase the question or ask a different question. Also, if you hear an objection, don't respond until I rule. Overruled means you can respond. Sustained means you don't have to. THE WITNESS: Thank you, your Honor. THE COURT: You're welcome. Ready to go. MR. ROSENBAUM: Thank you, your Honor. THE COURT: You may inquire whenever you're ready. DIRECT EXAMINATION BY MR. ROSENBAUM: Q. Dr. Radna, are you a physician duly licensed to practice medicine in the State of New York? Q. What year were you licensed to practice medicine in New York State? A.. Q. Can you tell us a little bit about your education, your background? A. Undergraduate, City University of New York. Medical

5 Dr. Radna/by pltf/direct 0 0 school, Mount Sinai School of Medicine, also in the City University of New York. Ph.D. in structural neurochemistry, also through the city university. My internship and residency in surgery and neurosurgery at Mount Sinai Medical Center. I did a three-year post-doc as part of my training at the LIMH studying how brain pathways are transmitted. Q. Doctor, what is neurosurgery? A. Neurosurgery is the medical specialty which deals with mechanical problems in the nervous system. The nervous system encompasses the brain, the spine and the nerve fibers that leave the spine and bring power to the muscles in our extremities and bring sensation back into the central nervous system, which is the brain and the spinal cord. Those mechanical problems might be an abnormal blood vessel, an abnormal growth, such as a tumor in the area of the spine, might be abnormality in the structure, the skeleton, that surrounds the nerves of the spine, abnormal bone, abnormal disks. To a great extent neurosurgery deals with the treatment of pain, both operatively as well as non-operatively. Q. Doctor, are you board certified? Q. Can you tell the jury what that means? A. The American Board of Neurological Surgery is the

6 Dr. Radna/by pltf/direct 0 0 world's gold standard in certifying neurosurgeons throughout the world. It is a subcommittee of the American Board of Medical Subspecialties of the American Medical Association, and certification is acquired through oral and written examinations, as well as case reviews. Q. Doctor, do you have any special interest in the field of neurosurgery? A. Yes, trauma. Q. Can you tell the jury a bit about your hospital affiliations? A. Chief of neurosurgery St. Joseph's Medical Center of Yonkers. Q. Do you participate in any teaching activities? I teach our residents in family practice at St. Joseph's in management of neurological and neurosurgical cases. Q. Doctor, are any of your writings published anywhere? Q. Where have your writings been published? A. Both in the clinical literature, as well as basic science. Q. And in what area did you author articles that have been published? A. In basic science, it studies how nerve fibers communicate and to which parts of the brain they communicate.

7 Dr. Radna/by pltf/direct 0 0 Clinical studies and work have been in operative documentation, including generating the best possible medical record through -D stereo documentation, as well as patient positioning issues during surgery. Q. Doctor, do you hold any patents regarding any medical devices? Q. What patents do you have? A. We contributed an auxiliary spinal retractor system which evenly supports muscles out of the way during spine surgery, diminishing trauma to muscles. Q. And are you actively engaged in the practice of neurosurgery today? Q. When is the last time you performed a surgical procedure? A. Friday. Q. When is the next time you're scheduled to operate on somebody? A. Day after tomorrow. Q. In addition to the surgery, you're also otherwise actively involved in treating patients? Q. As part of your responsibilities to patients, do you read and interpret imaging studies?

8 Dr. Radna/by pltf/direct 0 0 Q. What are neuroimaging studies? What are neuroimaging studies? A. Any picture of the nervous system, or the bones that surround the nervous system, are considered neuroimaging studies, the earliest being regular x-rays, or plain films, which may look mainly at bones. In ' and ' respectively we got in two non-invasive imaging techniques called CT scanning and MRI scanning, which uses a computer algorithm to take a digital picture of the brain and the spine. And those are the three main non-invasive imaging studies. Q. Doctor, what is a neuroradiologist? A. A neuroradiologist is a doctor who studied radiology who has a special interest in training and performing and interpreting neuroimaging studies. Q. Doctor, in terms of using the neurological imaging studies to make recommendations to assist a patient, who is better qualified to use the neuroimaging studies -- MR. SCAHILL: Objection. THE COURT: Sustained as to form. Q. Doctor, based upon your experience and your education and your ongoing practice where you treat people, do you currently use neuroimaging studies in your care and treatment of patients?

9 Dr. Radna/by pltf/direct 0 0 Q. Do you have an opinion with regard to using neuroimaging studies, who is better qualified to use them in the assistance of treating neurosurgical patients? MR. SCAHILL: Objection, your Honor. THE COURT: Within a reasonable degree of medical certainty, I'll permit the response. The neurosurgeon. The imaging studies are the map. If we're going to take a trip with one of our patients, we study the map with that patient. We correlate that map with what the patient's complaints are. We correlate the findings on that map when we have the spine open during surgery. We have a type of correlation through our course of treatment which a radiologist, who never meets the patients -- MR. SCAHILL: Judge, I'm going to object to this. THE COURT: Sustained. MR. SCAHILL: Doesn't answer the question and it's -- THE COURT: Yes. We're going to strike the last response. Q. Doctor, generally, how do you use the neuroimaging studies in your care and treatment of patients? A. I use them to correlate what my patient is telling me with these studies and make recommendations on that basis. Q. Are the neuroimaging studies an objective finding?

10 Dr. Radna/by pltf/direct Q. Which is different from what the patient tells you, which is a subjective complaint or descriion, correct? Q. When you generally make recommendations to your patients, how do you use both what the patient is describing to you and the studies? A. They both are important. The medical records are important. We correlate the physiology, what's bothering the patient, with the structure, what's on the studies, to make a determination if we can help the patient. Q. Doctor, do you have any special training with regards to reading neuroimaging studies? I am certified to perform and administer and read neuroimaging studies at St. Joseph's Medical Center. Q. Doctor, are you being compensated for your time here today? A. My practice is being compensated. Q. At what rate? A. Five hundred dollars an hour. Q. Have you been called to testify in court before? A. I've been so privileged. Q. Have you been acceed as a medical expert in prior cases?

11 Dr. Radna/by pltf/direct 0 0 Q. Approximately how many times a year do you find yourself in court? A. In the past, max, a dozen, dozen-and-a-half times a year. Recently less frequently. Q. In any average year how many days do you spend in the office caring for patients and performing neurosurgery? A. Well, between the office and the OR, about 00 days a year. Q. Now, doctor, specifically with Mr. Kjono, at my office's request did you come to meet Mr. Kjono and to evaluate him? Q. When was that? A. The first visit was --0. Q. At that time did you elicit a history? Q. What was the history that you obtained from Mr. Kjono? A. He told me that he was in his usual state of good health until October 0, 00, when he was involved in a motor vehicle accident. He told me he had diffuse somatic impact to his body and torsion of his body during the accident, had the onset of headaches, neck and arm pain, low back and leg pain, that he was treated non-operatively over an extended period of time, including epidural steroid injections, and it really,

12 Dr. Radna/by pltf/direct 0 0 really, wasn't helping him. Q. Were there other sources of information that you used with regard to your care and treatment of Mr. Kjono? A. Yes, extensive medical records. Q. And did you use both the history from Mr. Kjono as well as the medical records in some fashion in your care and treatment of him? Q. Was one source any more or any less reliable than the other? A. The medical records were very, very, helpful because, you know, some patients are better historians than others. Mr. Kjono is not the best historian and needed his recollection refreshed by looking at these records to find out what the history actually was. Q. What's the history that you obtained? A. He had, you know, some spinal issues. They were stable before this accident. And he had some subsequent issues and trauma. But in my reviewing the records it seems to me this MVA was the principal trauma which elicited the most severe back systems which he sustained. Q. Is that the October 0, 00 accident you're talking about? Q. Did you perform an examination when you first met

13 Dr. Radna/by pltf/direct 0 0 with Mr. Kjono? Q. What did that examination consist of? A. A mechanical examination of the spine, as well as a neurological exam. Q. Are you familiar with the terms objective finding versus subjective finding? Q. Can you explain what they are to the jury, what those two terms refer to? A. An objective finding is something a doctor can determine without a patient's help. A subjective complaint is something that we need the patient to guide us and help us in understanding. Q. What were the objective findings that you found regarding Mr. Kjono? A. On the first visit he had objective findings of severe spasm, or tightness, of his neck and low back muscles. That was the main physical finding. His neurological examination did not show deficits, nor did they at any time during my care of the patient. In other words, his strength, other than splinting due to pain, his sensation, his reflexes, were OK. The other objective finding was that an MRI of the cervical spine, the neck region, showing a pinched nerve at

14 Dr. Radna/by pltf/direct 0 0 the - level on the left side and -- MR. SCAHILL: Judge, I'm sorry. Can we have a date on the MRI that the doctor is referring to? THE WITNESS: Sure. THE COURT: Yes. A There was also an MRI -- Q. Doctor, before you go on, what's the name of the letter, what's the letterhead, what's the name of the facility, --00? A. Next Generation Radiology, and that report was read by Dr. Adam R. Silvers, neuroradiologist. There also was an MRI of done at the same facility, and also read by the same radiologist, Dr. Silvers, giving a disk herniation at L-S level with impingement of the bilateral S nerve roots. The patient also had an EMG study. This showed positive both in the neck area and the low back. And these were all objective findings showing an irritation to Mr. Kjono's nerve roots of his neck and low back. Q. Doctor, can you explain what the EMG tests and what the positive findings mean? A. EMG stands for electromyogram. It's a study that looks if nerve roots are irritated.

15 Dr. Radna/by pltf/direct 0 0 Nerve roots are defined as the fibers that leave the spinal cord and they give motor power to our muscles in our arms and legs. And it's well-known that if a nerve root is irritated, or not working right, we teach the medical students that these are reins that control horses. The horses in this analogy are the muscles of our body, and the reins that control those horses, those muscles, are the nerve root and the nerve fibers. If the nerve roots, the reins, are not working right, the muscles get very hyperactive. They jump. And electrically, when the doctor puts an electrode into those muscles, the muscles show increased activity, and that's a sign, objectively, that the nerve root, because they specifically tested for that muscle, each muscle that has a set of nerve roots that go to it -- are irritated. And there was irritation of the C nerve root on the left side showing -- and that correlates with the finding of narrowed canal where the nerve root is exiting on the left side of the C- level and, also, a herniation at the L-S level. This was positive for bilateral S nerve roots, which the MRI showed were in contact with a herniated disk. The disk was out of place. So this is a correlation between the structural, the MRI, and the physiologic, what the patient felt and what the electrical studies showed.

16 Dr. Radna/by pltf/direct 0 0 Q. Doctor, do you have an opinion to a reasonable degree of medical certainty what caused the injury at C-C? A. This is complex. The imaging studies that I reviewed of Mr. Kjono showed chronic degenerative changes. The changes we saw with the foramen on the left side is arthritis. He's had this for many years. The study of the low back shows a black disk, a desiccated disk. MRI studies can be done in what's called different echoes. In the Time echo water is white. It's normal for the shock absorbers between the building blocks of our spine to have water in them. If a disk has lost its fluid -- the shock absorber lost it's fluid -- it appears black on the MRI scan. Now, that's a structural finding. We can all have that in our spine. I'm a lot older than Mr. Kjono, and I can guaranty you I have black disks and I have osteoarthritis. I'm fine. You can have these degenerative changes and have no symoms, or minimal symoms. It's called the structure. But physiologically, listening to Mr. Kjono, looking at his record, his complaints of neck and arm pain, his complaints of low back and leg pain, were related to the trauma, historically, of October 0, 00 because that was the most serious trauma he's had. MR. SCAHILL: Objection, your Honor. THE COURT: Sustained.

17 Dr. Radna/by pltf/direct 0 0 MR. SCAHILL: I'd ask that that be stricken, your Honor. THE COURT: The word "serious trauma" should be stricken, ladies and gentlemen. "Most serious." Q. Doctor, with regard to the findings of the injuries at L-S, do you have an opinion to a reasonable degree of medical certainty what caused that injury? A. The term injury I would like to embrace as physiologic. What the patient felt. What the EMG showed. And I think the physiologic injuries at L-S are related to the MVA, the car accident, of October 0, 00, predominantly. Q. You mentioned the positive findings on the EMG studies. Regarding C on the left-hand side, do you have an opinion to a reasonable degree of medical certainty what caused that finding? Also the MVA. That's the most significant trauma he sustained, and the record -- MR. SCAHILL: Same objection, your Honor. THE COURT: "Most significant trauma" is struck, ladies. Disregard that. Q. Is it your opinion that the EMG -- the injuries confirmed by the EMG at C on the left side, was that caused by the accident on 0-0-0?

18 Dr. Radna/by pltf/direct 0 0 Q. Regarding the injury at S, at the nerve root, also confirmed by the EMG, do you have an opinion to a reasonable degree of medical certainty whether that was caused by the accident on 0-0-0? Q. You mentioned a few moments ago some of the subjective complaints that Byron provided to you. Could you go through what those complaints were? Subjective. A. Headaches, neck pain, arm pain, low back pain, leg pain. Q. Now, in addition to your examination, your review of the films from Next Generation Radiology that you just mentioned, your review of the objective findings of the EMG reports, did you review any other records with regards to your care and treatment of Mr. Kjono? I reviewed extensive medical records, his ongoing treatment with Dr. Atkinson, his medical doctor, emergency records from Nassau Community Hospital, from Southamon Hospital, and multiple treatment records, physiatric records, electrodiagnostics, and the records of my colleague, Dr. Guy, to who I referred Mr. Kjono for treatment after the surgery. Q. OK. Doctor, would it be helpful at this point for you to use a model to explain to the jury the disk injuries

19 Dr. Radna/by pltf/direct 0 0 that you've described? Q. Which model would be most helpful? A. Human spine model. MR. ROSENBAUM: May I, your Honor? THE COURT: Yes. (Plaintiff's exhibit was marked for identification.) Q. Doctor, what's been marked as ID, is that a reliable representation of the human spine? Q. Would you be able to show the jury, using plaintiff's for ID, the key findings in the neuroimaging studies regarding Mr. Kjono? Q. Please go right ahead. THE WITNESS: May I approach, your Honor? THE COURT: Of course. (Witness steps down to the well.) A. This is a model of the human spine. The area of the neck, the area of the ribs, the area of the low back, and the tailbone. All the areas of the spine are basically the same parts. There's the building block in front, called the vertebral body. And the shock absorbers between each body,

20 Dr. Radna/by pltf/direct those are called the intervertebral disks. They constitute the front of the spine. The back of the spine, we can feel most easily on our own backs, the bumps in the middle of our backs are the spinous processes. They're little bones that extend out from the lamina. The laminae are thin layers of bone which protect the nerve fibers in the spinal canal. Now, if we were to laminate our kitchen table and put down formica, that would be a protective layer. The laminae protect the back of the spine. Now, between the front, the building blocks, and the laminae, there's the middle of the spine. And the middle of the spine is formed by a structure called the little foot, the pedicle. The word is pes, pedis, and that joins the building block in front to two brake pads, an ascending facet that goes up from the pedicle and an ascending facet that goes down through the lamina. And these three parts are the major portions of the human spine. Now, the spine is not only there so we can move, we can bend without the bones irritating each other. We can also think of the spine as an electro-conduit that transmits the phone and the electrical wires so they're not injured. And the spinal cord extends from the brain down to the first lumbar level, the first low back level, and after that there

21 Dr. Radna/by pltf/direct 0 0 are nerve fibers called the horse's tail. Now, at every level of the spine a nerve root exits. The nerve fibers within the spinal canal and its foramen, that hole in the side where the nerve leaves, are called nerve roots. After they leave the spine they're called nerves. Now, in the low back the nerve roots are named under which pedicle they exit. If this is the S pedicle, and here is the hole where that S nerve root exits, it's called the S nerve root because it exits under the S pedicle. Now, the bottom disk in Mr. Kjono was a disk on the MRI that was black, that was weak, that was dry, and this disk was herniated. A hernia is defined as a normal structure in an abnormal location. If we have weakness on our groin muscles and our belly contents push into those muscles, it's called an inguinal hernia because our belly contents belong inside our belly, not in the muscles of our abdomen. The disk, the shock absorber between L-S, belongs between the building blocks. It does not belong in the spinal canal. That's why the radiologist correctly read it as a herniated disk. And the radiologist also said the passing S nerve root -- above my finger in the spine model, that's the S nerve root on the way to its exit, and it was impacted. It had pressure by that herniated disk. And that's the same nerve root which the physiatrist found irritated on the EMG. When we go through life, particularly if we're a

22 Dr. Radna/by pltf/direct 0 0 plumber doing heavy lifting, bending, we use our spines. Workers who do this type of labor have advanced occupational repeated stress, degenerative changes of their spine. These guys are working. They're fine. It doesn't bother them. But if a person with this type of arthritis in the spine, which is normal for them, asymomatic, are subjected to an injurious energy, the dry glue, that weak disk, gets ripped apart because it's not as strong as the others. And that's the significance. In the neck region, at the C- level on the left side, which is right here, basically the bones grew to try to strengthen Mr. Kjono's neck, which is good. He was using his neck. But the nerve root was in a narrowed canal. So when he was in injurious energy that's the nerve root that got irritated and bothered him and that, on EMG, was positive. So basically Mr. Kjono had come into this trauma with a spine that was normal for him, but predisposed him to his injuries. Q. The injurious energy, do you have an opinion to a reasonable degree of medical certainty whether that injurious energy was the result of the Held car crash on October 0 of 00? A. In major part. Q. Doctor, do you have the imaging studies themselves?

23 Dr. Radna/by pltf/direct 0 0 Q. Can you put those on the screen and explain the findings to the jury? I have to come a little closer to iconize (sic) that command font because I can't see it that well. Each imaging study is listed in chronologic order and I can open up any one that is useful. Q. Why don't we start with --0, cervical -. A. This is actually a CD image, so I have to -- I'm going to step down because I actually have to see that clearly to find the right icon. Excuse me. There's actually an image of the actual CD that we're going to execute. Now, there's side views and, if you take a fast look over, you can see the views for the -- these are the side views over here and, if you take the task bar to the right, you can see the axial views. Q. Can you explain what you mean by axial? A side view is as if I was standing and the signal came through my neck from the side. In the medical term it's a sagittal view, means side view, and this can be done in Time or Time. Time, water in the spine is dark and in Time it's white. If we were to take a slice through the axis of the spine, that's called an axial view, and this is what these views are here. Q. Can you explain to the jury what you see on that

24 Dr. Radna/by pltf/direct film? 0 0 A. If you were to lie me down on a table and you were to -- with a computer -- take a slice through my neck, what you see here is: This is the front of the spine. This is my windpipe and swallowing pipe here. This is the back of my neck. Here's the right side. Here's the left side. So this is a cut through the axis of the spine. Q. And how did that film help you diagnose and treat Mr. Kjono? A. Well, it shows right here. You see how big the exiting canal is at - on the right side? There's a protrusion in the foramen on the left side and the -- you can see the exiting canal is much smaller, as correctly read by the radiologist. I don't believe this structural change is related to the car accident. I think this was something that was normal for Mr. Kjono. That was asymomatic. That was rendered symomatic by the trauma because the nerve root had no place to go. We bounce around, we move our arms, and it stretches those nerve roots and it was tight. Q. Is that the C-? Q. Can you pull up the film regarding L-S? A. Sure. I'm going to step down just a minute. Maybe we can do it that way. This is also a CD image on the hard

25 Dr. Radna/by pltf/direct 0 0 drive of the computer that we'll execute. Now, this is the midline side view, and you can clearly see the disk at L-S is black. The other disks are all white. This is a T MRI. Water in the spinal canal is white. All the other shock absorbers have fluid in them. This one is black. The black disk, the desiccation is not related to any particular trauma. It's related to life. Many of us can have this on our backs and, absent trauma, have no symoms. I guaranty you, my back MRI looks much worse than this. I'm fine. I wasn't in this type of accident. Q. Doctor, let me ask you a question. Q. Do you have an opinion to a reasonable degree of medical certainty as to what changed Mr. Kjono's L-S disk from being asymomatic, or not symomatic, to something else? A. The main injury Mr. Kjono sustained in this trauma was physiologic, as shown on the EMG. The S nerve roots, which pass here, were irritated because this is dry glue. We're bounced around in a vehicle. The dry glue is not strong enough to hold those bones together. It's mechanically disrued. What I found at surgery, this disk was ripped apart and the surgery was to glue it back together again the best we could. And the injury here is a physiologic injury to how

26 Dr. Radna/by pltf/direct 0 0 Mr. Kjono felt as that dry glue no longer was strong enough to hold those building blocks. That's why he had a spinal stabilization procedure done, to try to strengthen that joint. And there is a central disk herniation, which what I found at surgery I can tell you with certainty was related to trauma because the impingement I found was such that it couldn't have been just degenerative. Q. The tearing apart that you described, do you have an opinion to a reasonable degree of medical certainty whether that was caused by the Held crash on 0-0-0? MR. SCAHILL: Objection. THE COURT: Sustained as to form. Q. Do you have an opinion to a reasonable degree of medical certainty whether that tearing apart was caused by the car accident on 0-0-0? A. I believe -- MR. SCAHILL: Objection, your Honor. THE COURT: I'll permit that. A. I believe the principle trauma which caused Mr. Kjono's problems is the car accident. He had traumas before. He had traumas subsequently. I believe historically, and based on the biomechanics of what happened to him in that car accident -- MR. SCAHILL: Objection as to the descriion of biomechanical.

27 Dr. Radna/by pltf/direct 0 0 THE COURT: Yes. Sustained. Q. Doctor, could you explain to the jury a bit about your experience with biotraumatic issues? A. I've been a neurosurgeon for years. Neurosurgeons deal with trauma every day. I particularly am interested in trauma. I can tell you with medical certainty what happened to Mr. Kjono, in great part, was related to this MVA. MR. SCAHILL: Objection, your Honor. THE COURT: Sustained. Struck. That wasn't responsive to your question. MR. ROSENBAUM: OK, your Honor. Q. Doctor, now you've expressed your qualifications in biomechanics. Now would you please express your opinion to a reasonable degree of medical certainty what caused Byron's preexisting asymomatic issues at L-S to now result in the pain and the other symoms that you described? MR. SCAHILL: Objection, your Honor. He didn't express any qualifications in biomechanics. THE COURT: I believe the doctor only testified to that he has been a neurosurgeon for 0-something years. Q. Doctor, could you specifically discuss your experience, your training, your education, with regards to biomechanics?

28 Dr. Radna/by pltf/direct 0 0 A. In our responsibility to treat our patients who undergo trauma we have trained as neurosurgeons -- we're mechanics -- to look at the mechanism of injury, to correlate the injurious energy sustained by the patient. That's part of neuro-physical training. MR. ROSENBAUM: May I, your Honor? THE COURT: Sure. Q. Doctor, now, you expressed your specific training and experience in biomechanics. Can you now express your opinion to a reasonable degree of medical certainty what caused Mr. Byron's previously asymomatic spine issues to become symomatic? MR. SCAHILL: Same objection, Judge. He gave no qualifications in biomechanics. THE COURT: Can I see counsel at the bench? (Off the record discussion ensued at the side of the bench.) THE COURT: Sustained as to form. Q. Doctor, in the course of your training, taking courses, teaching medical students, can you describe for the jury specifically what courses you taught, lectures, articles, that specifically refer to biomechanics? A. Neurosurgeons are mechanics. We're mechanics of the nervous system. We deal with mechanical issues. The surgery that Mr. Kjono had was, in a profound

29 Dr. Radna/by pltf/direct 0 0 sense, a mechanical surgery. We stabilized his spine. So, biomechanics is neurosurgery. Biomechanics -- if neurosurgeon doesn't understand biomechanics, he can't help a patient. Q. Doctor, do you have an opinion to a reasonable degree of medical certainty whether the accident of caused Mr. Kjono's injuries at L-S as you have described? MR. SCAHILL: Same objection, Judge. He didn't see him until seven years after that. THE COURT: Well, that might be an area for cross-examination. MR. SCAHILL: I think it will. THE COURT: Overruled. I think the principle cause of the L-S syndrome that Mr. Kjono sustained was the MVA of October 0, 00. There were other injuries, of course. Q. Doctor, as a result of your examination of Mr. Kjono, your review of the objective MRIs and EMGs, and your review of Mr. Kjono's medical records, as well as the subjective complaints from Mr. Kjono, did you recommend any specific course of treatment? Q. What did you recommend? A. I recommended therapy to his neck and back, which is ongoing. I recommended a neck and back brace, and I recommended a spinal stabilization procedure to his low back,

30 Dr. Radna/by pltf/direct with a possible future oion of cervical decompression as well. Q. Doctor, the treatments that you just described, and the surgery that you performed, do you have an opinion to a reasonable degree of medical certainty whether the need for that treatment and the surgery was caused by the accident? MR. SCAHILL: Objection. THE COURT: I'll permit that. A. In principle part. Q. Prior to operating on Mr. Kjono, did you discuss with him the risks of the procedure? Q. Could you first describe the procedure that you proposed to Mr. Kjono, and then tell the jury what risks you explained to Mr. Kjono. A. The operation is called a posterior lumbar inter-body stabilization. THE WITNESS: Your Honor, may I use the spine model? THE COURT: You may. Of course. The Officer will bring it up to you. THE WITNESS: Thank you so much. Q. If I may, doctor, plaintiff's,, as well as 0, are in evidence. You're welcome to use those as well.

31 Dr. Radna/by pltf/direct 0 0 A. Thank you. We can use them now. THE WITNESS: May I step down, your Honor? THE COURT: Yes. Sure. There's an easel over there, Mr. Rosenbaum, if you want to use that. MR. ROSENBAUM: Thank you. MR. SCAHILL: Your Honor, I'll get up, if it's OK. THE COURT: Sure. Anywhere you want would be fine, Mr. Scahill. Q. OK. Doctor, when you're ready what I would ask you to do is please describe the surgery you proposed and the risks. A. OK. The bottom disk in the lumbar spine, between the low back and the tailbone, is the disk that was dried, the disk that was herniated, the disk that impacted the passing nerve roots and it's the location of the nerve roots of the positive EMG. Now, the procedure we performed was originally described by a brilliant neurosurgeon by the name of Ralph Cloward, C-L-O-W-A-R-D, in the late '0s, early '0s, and that was a procedure where we operated from the back. That's why it's called posterior, from the back. He got access by removing some bone from the back of the spine, removed a great portion of the shock absorber, and replaced it with four cubic

32 Dr. Radna/by pltf/direct 0 0 rectangles he took out of the iliac crest. This is called a static fusion. It's a very old operation. It's an operation which cements the bones together. They would never move again. And the theory is: It's weak. Let's make it stronger. It makes sense. Well, it turned out over the years, with what spine surgeons learned, and how I explain it to my patients, if you have a garden fence with five links in it and that gate is open and closed all the time, the middle links get worn down. They're going to break. You get out your blowtorch, get some steel, you weld the middle two together. You have to strengthen them. What happens: You keep using that gate. The juxtaposed level's links, next to the ones welded, are going to breakdown because they're going to absorb the motion of the welded or fused part. So more than spine surgery has moved into procedures that stabilize the spine, that strengthen the joint, but preserve motion, and that's the surgery Mr. Kjono had. It's called a posterior lumbar inter-body stabilization procedure. We use Dr. Cloward's retractors, his conces, but then the graft is small enough that it's like a ball bearing. The spine can still move but, instead of having that weak disk that's mucousy (sic) and ripped apart by the trauma, degenerated, something solid is in there that the body can

33 Dr. Radna/by pltf/direct 0 0 heal. It's not a foreign body. It's real human bone. It's allographic femur, thigh bone, but all the human protein is taken out of it, its hydroxyapatite crystals. So that, in short, is the procedure Mr. Kjono had. A posterior lumbar inter-body stabilization at the L-S level. Q. Could you tell the jury what risks you told Mr. Kjono he was subject to if he chose to have the surgery? A. Any patient having a surgery has the risk of hemorrhage, has the risk of infection. In addition to that, when you do surgery on the spine you can have persistent or increased pain. You could have a risk of neurologic deficits, of weakness, in the distribution of the S nerve root. Interference of bladder, bowel and sexual function. There's a risk of injury to blood vessels in the area of the spine that may require more surgery to repair, including emergency lifesaving surgery. There's risk of need for more spinal surgery if the limited microsurgery of the type I recommended to Mr. Kjono did not solve all his problems mechanically in his back. There's even risk of paralysis and death. There's risks of unforeseen complications on the anesthesia and surgery. We routinely do these surgeries with acceable results, but there's no guaranty, as we say. Q. Has that surgery been performed?

34 Dr. Radna/by pltf/direct 0 0 Q. As part of your work as a surgeon, did you maintain records of the surgery? Q. What type of medical records did you maintain of the surgery performed on Byron? A. We import into our operative report, firstly, imaging studies, CT scans, MRI scans, before and after the surgery, and we also use an operating microscope. You can think of the operating microscope as a mounted pair of binoculars but, instead of having a two-eyed end of the scope, the objective lens is a single objective lens so we can look into very narrow spaces and bring stereo -D view. And that operating microscope has mounted on it -D stereo video cameras, as well as digital caure for paused frames of the video. So we import some portions of this documentation of the paused frames into the op note so any surgeon, including myself, who may be operating on Mr. Kjono in the future has the road map of what the findings are to bring into the medical record and, actually, experience of the surgery itself. Q. Do you maintain this type of record and video on all of your patients? Q. Why?

35 Dr. Radna/by pltf/direct 0 0 A. It's the best medical record. Q. Now -- THE REPORTER: Can I ask the witness to resume the stand? THE COURT: Yes. I thought you were going to use the chart, but apparently at this point no. Doctor, why don't you come back up to the stand. Q. Doctor, with regard to the surgery performed on Mr. Kjono, do you have the actual surgery that you can show to the jury and explain to them what you did? Q. Could you go ahead? THE COURT: Do you need a few moments to set up? THE WITNESS: We're all set. Thank you, your Honor. THE COURT: Do we need the glasses? MR. ROSENBAUM: Well -- THE WITNESS: Yes. THE COURT: It might be a good time, before we start, to take a short break. I think that might be a good idea. We've been going for more than an hour. Ladies and gentlemen, don't discuss the case.

36 Dr. Radna/by pltf/direct 0 0 Please follow the Officer. We'll have you back shortly. (Recess taken, after which the following ensued in the presence of the jury.) COURT OFFICER: Jury entering. THE COURT: Please be seated, everybody. Ladies and gentlemen, the film we're about to see requires the use of -D glasses. The Court Officer will be handing them out to you. You'll be able to put them on and look at the film. I understand it's about ten minutes long. (-D glasses given out to the jurors by the Court Officer.) Q. Doctor, they fit over the glasses? A. Sure. There's a switch on the ear bar. Hit it once and you'll be all set. It's on the top of the ear bar, up by the lenses. There you go. COURT OFFICER: Green button on top. Hit the button. Judge? THE COURT: Yes. I'm going to come down. Do you have extras? MR. ROSENBAUM: Yes, I do, your Honor. I believe for them to work you have to come on this side with this device. Somehow it works. If there's a problem, there's one spare.

37 Dr. Radna/by pltf/direct 0 0 Q. Doctor, will it work with the lights on? A. It works fine. MR. SCAHILL: Judge, I just ask that somehow we preserve this and mark it into evidence, either on CD ROM or some other means -- THE COURT: Do we have that, Mr. Rosenbaum, something that we can preserve this? MR. ROSENBAUM: I'll make sure it happens, your Honor. THE WITNESS: It's all in here (Indicating). THE COURT: Can we show that to Mr. Scahill? MR. SCAHILL: I have that. His report I have. THE COURT: Oh. MR. ROSENBAUM: I'll make sure that there is a copy, a CD or some other method. I don't have the ability to do that today, but I'll make sure. THE COURT: Before the end of the trial I just want to have a CD that we can mark into evidence. JUROR NO. : Ginger, her glasses are not working. THE WITNESS: The emitter went off. If it goes off, just hit it again. Q. The op report is not -D? There's -D portions. This is just the report of the surgery on Mr. Kjono

38 Dr. Radna/by pltf/direct 0 0 which was done on May 0, 0, about a year ago, and basically it gives the name of the patient, Byron Kjono, and it shows the MRI we looked at showing the black disk at L-S. This is what's operated. And the operation is L-S laminotomy, that makes a little hole in the back protective layer. Medial facetectomy, that's access through the middle part of the brake pads in back, preserving the lateral portion which preserves stability. And discectomy, which means taking part of the disk out. In surgery, when we have a suffix ectomy, it means removal. Discectomy is removal of the disk. We preserved 0 degrees around the disk. So we windowed it to put the graft in and inter-body stabilization, which is basically putting in that new ball bearing made of bone. Now, this is the first image. Put on your glasses now. You'll see -D. This is Mr. Kjono's head, his feet, the right side, the left side. This is a methylene blue pen marking the incision, and we use x-rays to localize the incision. And the next image shows we've opened the skin. This is the fascia, or the supporting membrane around the entire back. This wraps around into our belly. We have it in the front too. And in the next image we have pushed the muscles

39 Dr. Radna/by pltf/direct 0 0 away and we're looking at the spinous processes that we saw on the spine model and we remove bone, ligament. We did a confirmatory x-ray to confirm our level. And in this next image we have now taken the middle part of the lamina off here. This is the exiting L nerve root. This is the L pedicle here. So we know that the L nerve root exits under the L pedicle. And here's the S nerve root and here's the herniated disk. You see it's not flat. It's bowing out towards you. And this is back to the operative report. It says a herniated disk was encountered at the L-S level. Discectomy and inter-body stabilization with allographic femur was carried out. And this is another view. This is the herniated disk in -D. And this is a brief video. In the fourth dimension of time you'll see the disk as we manipulate it. This is a Woodson dental instrument. We're palpating under the S nerve root. This is the pedicle of S where the S nerve root is exiting under. And this is just normal irrigation with antibiotic to protect Mr. Kjono from infection. And the next brief section I put in, look carefully at this disk, you're going to see this is a bipolar forceps, which is basically a coagulator. But, you see, the disk moves. It's very soft. It's very ripped apart. It's very

40 Dr. Radna/by pltf/direct degenerative. You'll see that it's moving tremendously. A normal disk doesn't do this. And that's why I put it in this video. It really shows the injury that this disk was really ripped apart by this trauma. And we made a hole in the disk with a Malis bipolar coagulator. And you can see, now that the disk is out, you can see with your -D glasses way from the back of the vertebral body to the front. The distance here is about two-and-a-half inches, or four centimeters. We've windowed this disk and we're irrigating it out to make sure there's no loose disk fragments in it. And this next sequence will show -- this is the inter-body stabilization graft. This is a graft inserter. And this is an ovoid of allographic femur. And here the graft is in place within the inner space. And the next sequence will show putting a Grafton. This is a medication. It is demineralized cortical bone. It has a medicine in it, called bone morphogenic protein, to help bones heal together. And here the medication. The graft is in the interspace. We tamponade the interspace with Gelfoam. A Gelfoam is a sponge, made from plant fibers, which is absorbed by the body in about three months. Now this is a picture in the op note. This is a CAT scan. This is a side view, and this is the axial view. You see that weak disk now is replaced by an ovoid of allographic

41 Dr. Radna/by pltf/direct femur. So the bones can still move. You can see most of the disk is still preserved, but we put in a spacer made of real bone that can heal, in a profound sense, making new disks for Mr. Kjono. And that's the purpose of this surgery. And this is a -D CAT scan. This is called a vitrea reformation. This is L-S. Here's the inter-body stabilization graft we can see in -D. This is a view from the left side. This is a view from the right side. You can clearly see on this -D vitrea reformation that there's osteophytes here. There's degenerative changes. There's all the signs consistent with the black disk, which Mr. Kjono had before this trauma. Here's the building block supported by the spacer from the front. And here it is, we windowed the vertebral body to get the spacer in there. Here's the spacer from the rear view. Here's the spinous process we talked about. The ascending facets, vertebral bodies, L vertebral body, S. And this is the completion of the operative report. This is the closure, drains placed, and here's the closure of the skin with staples. This is identification to show, indeed, this is the record of Mr. Byron Kjono of May 0, 0. And it says in this note that we maintain in the record -D stereo video and -D stereo paused frames in case Mr. Kjono needs further spine surgery to his low back. And that's the extent of the

42 Dr. Radna/by pltf/direct operative report presentation. Q. OK. Doctor, do you have an opinion to a reasonable degree of medical certainty whether the need for this surgery that you just showed the jury that Mr. Kjono suffered, whether the October 0 of '0 accident was a substantial factor in causing the need for that surgery? MR. SCAHILL: Objection. A. Yes, it was. THE COURT: Overruled. Q. Sorry, doctor? A. Yes, and it was. Q. I want you to assume that Mr. Kjono has testified that he anticipates approximately a two-year recovery period from the surgery. Is that an accurate anticipation? A. Correct. It takes minimum two years for that bone graft to heal. He's about a year postop now. So he's set up for a new MRI scan soon. Q. Up until that two-year mark -- again, based upon your care and treatment and the surgery you performed -- what is Mr. Kjono's ability with regards to seeking employment? A. Well, Mr. Kjono certainly can't do heavy activities, such as a plumber. I mean, the surgery he had, even as we sit here today, I believe is the most advanced, forward looking, procedure for this condition. There is nothing in our

43 Dr. Radna/by pltf/direct neurosurgical armamentarium, even today, to physiologically return Mr. Kjono to normal, as he was prior to this MVA, without a need for surgery. Certainly, I think that plumbing and lifting and bending on a long-term basis is out for him. That's, you know -- he earned his livelihood in that area. If feasible, he really, if possible, should retrain for something else that's more cognitive and less physical, if that's possible for him. Q. I want you to assume there's been testimony to this jury that after the two years, assuming everything goes well, that, best case scenario, Mr. Kjono will be able to do some type of sedentary work that doesn't require lifting of any significant weight. A. We certainly hope. There's no guaranty of that. Q. Do you have a prognosis with regard to Mr. Kjono's future abilities? A. Well, we hope the graft will continue to heal and stabilize that joint. Mr. Kjono has had relief of his leg pain. His leg pain has been resolved by the surgery. His major problem is mechanical back pain. The graft hasn't healed yet. We're hoping in time it will heal. It will stabilize that joint. If not, he will require more surgery to further stabilize that joint. Q. I want you to assume there's been testimony from Mr. Kjono that two or three months ago he stopped taking all

44 Dr. Radna/by pltf/direct pain medications. Is that consistent with the surgery performed and the healing process that you've described? We call this the 0 year-old syndrome. If we make believe we're 0 years old, we sit in the chair, read the paper, watch the tube, don't do to much. We feel pretty good. But if we try to do anything a young man should be able to do with his life, his back isn't right. He was injured. He had the best surgery, I believe, that's feasible, but we're not good enough to return him to where he was. Q. You described future surgery. Q. Is it likely Mr. Kjono will need future surgery? MR. SCAHILL: Objection, your Honor. THE COURT: Sustained. Q. Do you have an opinion to a reasonable degree of medical certainty whether or not Mr. Kjono will need a future spine surgery? MR. SCAHILL: Objection. MR. ROSENBAUM: I'll rephrase it, your Honor. I'll withdraw and rephrase it. Q. Doctor, based upon your care, your treatment, your review of the MRIs, your review of the EMGs, your examination, and your surgical care and treatment of Mr. Kjono, do you have an opinion to a reasonable degree of medical certainty whether

45 Dr. Radna/by pltf/direct Mr. Kjono will need future spine surgery? MR. SCAHILL: Objection. THE COURT: Yes. I'm going to have to sustain that. It's conjecture. Q. What's your prognosis for Mr. Kjono? A. It depends on his response to further management. It's early after the surgery for the low back. I believe he still has neck complaints. I think in time he can not avoid the microdecompression of the cervical spine. We certainly want to wait, before doing that, for the maximum benefit from the low back surgery, and that will be determined within a year or two from now. Q. What is the microdecompression surgery you're referring to? A. It's a posterior microdecompression approach. We saw the narrow tube on the side of the spine, the left side, where that tube is narrowed. The surgery is to open that tube up. The medical term is called a foramenotomy, which basically opens up the exiting canal. It's a surgery from the back of the neck. Q. Will the anticipated -- withdrawn. The care and treatment you described in your prognosis, does that have any associated costs with it? If the patient needs further lumbar surgery -- MR. SCAHILL: Judge, I move to strike this.