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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1065
THE COURT: We ready for the jury?
MR. RONEMUS: Yes.
COURT OFFICER: Okay, Judge?
THE COURT: Thank you.
(Whereupon, there was a pause in the
proceedings. )
witness.
D R.
THE COURT: All rise.
COURT OFFICER: Jurors.
(Whereupon, the jury entered the courtroom.)
THE COURT: You may all be seated.
Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: Defendant, call your next
MS. SCIRETTA: Thank you.
The defendant calls Dr. Robert April.
THE CLERK: Raise your right hand.
ROBERT A P R I L,
called as a witness, having been first duly sworn by
the clerk of the court, was examined and testified
as follows:
THE WITNESS: Yes, I do.
THE CLERK: Lower your hand.
In a loud, clear voice state your name and
address for record, spelling your first and last name.
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA
THE WITNESS: Robert April. A-P-R-I-L.
THE CLERK: Address.
1066
THE WITNESS: 4 East 88th Street, New York,
New York 10128.
THE CLERK: You may be seated.
THE WITNESS: Thank you.
THE CLERK: You are welcome.
THE COURT: You may proceed.
MS. SCIRETTA: Good afternoon.
DIRECT EXAMINATION
BY MS. SCIRETTA:
Q
A
Q
A
Q
Good afternoon, doctor.
Good afternoon.
Doctor, you said you are a doctor.
What is your medical specialty?
I am a neurologist.
And for how many years have you been a
neurologist?
A A long time.
(Whereupon, there was laughter in the
courtroom. )
A
Q
Over 40.
Okay. With respect to your background, could you
please describe for us your educational background,
starting with your undergraduate medical school, and then
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1067
your training after medical school.
A Yeah.
Went to the University of California, Los Angeles.
And the University of California, Berkeley. And I graduated
from medical school at the University of California, San
Francisco. Then I came to New York and I interned at the
Mount Sinai Hospital in New York City. And I did a general
rotating internship in medicine and surgery.
Then I started my professional training in
neurology which I did at the Mount Sinai Hospital. At the
Kings County Hospital in Brooklyn, where I spent a year in
neuropathology in the Kings County Morgue. And then I did a
year of training at the Rusk Institute as part of my
neurology in rehabilitation medicine.
Then I went on to a postdoctoral training program
in electroencephalography, which is EEG. And
electroencephalography, EEG, that was done at the Mount
Sinai Hospital for the two years.
Then spent two years at the New York University
Medical Center in neurophysiology actually doing research on
the nature of pain mechanisms in the spinal cord and brain.
And then it took my research to London for a year under the
auspices of the National Multiple Sclerosis Society and
taught and did research at University College, London.
Then I was in the service for two and a half years
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1068
in Baltimore, Maryland. I was the chief of neurology at the
United States Marine Hospital in Baltimore. And I had a
commission in the Coast Guard.
After that, I came back to New York and I went into
a job at the Bird S. Coler Hospital, which is on Roosevelt
Island. I was the chief of neurology there for 7 years.
That's New York City's hospital for chronic diseases as a
place where people went with paraplegic, gunshot wounds, end
stage results of chronic progressing diseases. Epilepsy,
Alzheimer's, various diseases.
After 7 years there I went into private practice.
I have been in private practice at the address I stated
since 1977. And during those years I have been an attending
neurologist at many hospitals in New York, some of which
have closed, including St. Vincent's.
I have been and still am at NYU Medical Center,
Mount Sinai Hospital, Lenox Hill Hospital. And I am a
member of the New York County Medical Society. And I am a
fellow of the American Academy of Neurology. And I am a
member of the French Neurological Society in Paris. And I
am on a various boards. I am on the board of Generic
Disease Foundation at Mount Sinai Hospital.
I spend most of my time in my office and I teach
courses to NYU medical students once a year in clinical
neurology. And I teach residents at Mount Sinai Hospital in
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1069
their clinics twice a year.
So, that's essentially what I do. I see patients
and I go to hospitals.
Q Have you written any papers that were related to
your field of study?
A
Q
I have.
And basically could you just give us a brief
overview of what the subject matter was of your medical
papers?
A I have written papers on reflex changes in the
spinal cord experimentally. And I have written a paper on
Parkinson's disease and several on aphasia, which is
language dysfunction from stroke in the brain. And I have
published papers also in the history of neurology.
Q
A
Q
Q
Approximately how many papers have you written?
About 20.
And have you
MR. RONEMUS: Sorry. How many what?
MS. SCIRETTA: Papers.
THE COURT: Papers.
MR. RONEMUS: Oh, papers. Okay.
Are you, you may have said, are you board
certified?
A I am board certified in neurology by the American
Board of Psychiatry and Neurology. And I have board
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1070
certification from the American Board of Qualification in
EEG.
Q
A
Q
A
What does that mean, board qualification in EEG?
Specifically?
Yes.
Well that I took an examination from that board.
After showing them that I had spent the requisite
time seeing patients and doing EEGs and reading the
requisite number of records, then I had an oral and written
examination. And a simulated laboratory examination.
Q Approximately, doctor, how many EEGs would you say
you performed each year?
A
Q
A
Q
Well in my own office?
Yes.
Between 200 and 250 a year.
Are you ever called upon to read EEGs for other
physicians?
A I am sorry?
Q Are you called upon to read EEGs while at the
hospital or for other physicians?
A I've done that, too, as well.
Q Doctor, did there come a time that you were
requested to see a plaintiff by the name of Karen -- Leslie
Karen Lariviere?
A Yes.
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1071
Q And were you contacted with respect to, again to
come here today to be in court to give testimony about your
findings on that matter?
A
Q
Yes.
And with respect to that contact, was there an
agreement that you would be compensated for your time away
from your office?
A
Q
A
Q
Yes.
And what was that agreement?
$4,000.
And that would encompass everything you've done on
this case?
A Yes.
Q Did you actually examine Miss Lariviere?
A Yes, I did.
Q Do you remember when you did that?
A Yes. On December 291 2010. I saw her once.
Q Now, with respect to seeing the patient were you
provided the patient plaintiff, were you provided with any
medical records for your review?
A
Q
I was. With some.
And with respect to that physical exam, did the
patient come to your office, plaintiff?
A Yeah. She came to my office and she was
accompanied by her husband and her attorney, Mr. Ronemus.
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1072
Q When you conducted the physical examination, who
was present in the room?
A The three. The plaintiff, her attorney, and her
husband.
Q With respect to this examination, how did you
proceed with the examination? What were the first steps
you took?
A All right. I asked her to tell me how, what
happened to her. How the accident -- what kind of an
accident it was and how she was injured. What symptoms she
developed. And how they subsequently played out and how
she felt today.
Q What did you learn, starting from the beginning,
about what she told you?
A Well what she told me was that on the day of the
accident in 2008, in December, she was a pedestrian and she
was struck on the side of her head by the mirror on a
passing city bus. That caused the local injury. And she
was taken to, or she went immediately to Lutheran Hospital
in Brooklyn, which was close to where she's, close to where
she was as possible. And she went to the emergency room.
And she told me she was treated in the emergency
room and attention was given to the local scalp injury
(indicating). She was examined completely. And other
examinations were performed and she was ultimately
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1073
discharged from the emergency room without being admitted to
the hospital. She was given the usual instructions that
people get when they go to the emergency room and have an
injury to the scalp.
And then she told me that sometime later she had an
event which was called a seizure. And as a result of that,
she was taken to, again to the Lutheran Hospital. And that
occurred about five months after the accident in April of
2009. And that's what she told me.
And she said that the seizure was observed by her
husband and he was present. And he, I think he also
described it a bit to me. And after that she had -- she
developed many different symptoms, which she claimed was a
result of this experience. And this involved her thinking,
her memory, her emotions. She became sad and depressed.
And she said that she became nauseated.
And she actually gave me a list that she made of
the kinds of ways her life had changed. And I think that
was very, very descriptive. And I could essentially read
all these points, but it covers so many aspects of life that
it affected sleep, sexual feelings, appetite, ability to do
mental calculations. Ability to cope with situations of
stress. In short, it changed her whole life, according to
her. That's what she told me. And as a result of this
seizure she was put on medication which included
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1074
anti-convulsant medication we normally use in the treatment
of epilepsy.
At this point I would like to state when I say
seizure, I am using the word that the plaintiff gave to me
and that's been recurrent in the documents that I've
reviewed.
And I would like to say that seizure is a general
non-specific word in terms of cause, because seizures can be
caused by many different things. One of which is traumatic
brain injury. And at the other end of the spectrum, totally
psychological causes.
So, in neurology when we see a patient with a
seizure we do a number of investigations to see if we can
find any physical correlate in the brain to treat or whether
this has other etiology such as heart problems, lung
problems, reflex postural problems involving falling blood
pressures when you stand in different positions, or
emotional aspect.
So, she said that her seizure was treated by
various people and she was put on all of these medications
and she hated taking them and this had changed her life as
well. So that was the story I was given. She wasn't
working any longer. She had been working until the time of
the accident.
Q Did you, after receiving the history, did you
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1075
proceed to do a physical examination?
A Yes. And I did that because my job as a --
MR. RONEMUS: Objection.
THE COURT: Sustained.
MR. RONEMUS: I don't think she asked why.
THE COURT: It's not responsive.
Ask the next question.
Q Doctor, with respect to your physical examination,
can you please describe for us what your findings were and
what was your objectives in examining each part of the body
that you
A
Q
A
Yeah.
-- you performed your physical on?
Well I examined each part of the nervous system in
order to see if there were any signs of abnormality that
would correlate with brain dysfunction.
Q
A
And what did you learn?
So I looked at all parts of the neurological
examination, which I will enumerate.
I looked at the way that she moves spontaneously
and spoke to me spontaneously. Listened to the content of
speech to see if it was logical. If her motor aspects of
speech production were normal. If rhythm content was
normal. She had any difficulty in word finding. I looked
at the way her face moved in making emotional expression,
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1076
whether both sides moved equally or whether there was any
paralysis of movement.
I asked her to look at my finger and track it in
the cardinal positions of movement of the eyes to see if the
eyes moved together. Or whether she had double vision
because one eye didn't move as well as the other.
I looked at the pupillary reactions to light.
Shining a light in one eye and looking at the pupillary
response in that eye and the other eye and then changing
that direction. Which is a way of looking at intrinsic
brainstem functions.
I looked at the way she was able to put her tongue
out, move her mouth and tongue. And move her head in all
directions. Also I looked at the way that she was able to
walk and stand and I looked at the rhythm of gait and its
coordination and balance.
And I did tests of postural reflexes. And I looked
at her motor power in the limbs by seeing how strongly she
could contract her muscles against me. To see if there was
local paralysis in one place or another. And I looked at
the size of muscles in the arms and legs to see if there was
any wasting or atrophy, which is another direct sign of
neurological damage.
I also looked for any deformities of the skull or
anything that would look like an external sign of injury or
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1077
any kind of local abnormality or congenital abnormality may
play a role in producing seizures.
I also looked at her reflexes because reflexes are
another direct indicator of spinal cord and brain injury. I
looked at certain reflexes which are telltale signs of
nervous system injuries, such as the Babinski sign in which
when the bottom of the foot is slowly stroked, the positive
sign is an involuntary withdrawal of the big toe and a
flexion of the leg away from the stimulus.
I looked for the Romberg sign. A sign of postural
incoordination which amounts to falling off a narrow stance
by placing the legs together, standing erect, putting the
arms out and closing one's eyes.
I looked at sensory testing. Looked at the
anterior to perceive position and touch sense on the limbs.
I looked also at her ability to flex, extend the back, lie
down, sit up. Do some coordination movements of the legs.
And to see if there was any kind of mechanical movement I
could make of the limbs or head that would produce pain. I
looked for tenderness over the scalp by percussing.
And that was a complete neurological examination to
see if there was any physical, neurological, abnormal sign
to correlate with any of her subjective multiple symptoms.
And by subjective I mean what somebody tells you he
feels. And objective, which is something that you can see
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1078
and measure and could be reproducibly sign by someone who
you describe the situation. That's what I did.
Q What were your findings after doing that
comprehensive physical examination?
A What I found on this examination was a totally
normal examination. There was no abnormal physical,
neurological, mental finding on this exam that I could see.
At that time.
Q Did that also include her checking for double
vision that you said you had, had also checked for?
A
Q
A
Q
A
Check for what?
Double vision?
Yeah.
Did she have double vision?
No.
Q Did she complain of visual problems to you?
(Whereupon, there was a pause in the
proceedings.)
A I can't remember specifically that she did.
I just want to go over this list of 24 -- no.
There's really no ... no. There's no specific visual
complaints. No visual complaints.
But she did say that she had occasionally
subjective olfactory and gustatory complaints. Those are
other sensory areas. Taste and smell. She said she would
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA
occasionally smell or taste things that really were not
present as if they were hallucinatory.
1079
Q What would be the significance of that complaint?
A It's an interesting question.
In some kinds of partial epilepsy that come from
the temporal lobe patients can have an onset of a seizure
with an olfactory or gustatory hallucination. And these
kinds of smells and tastes that they experience, which may
be a re-memorization of the smell and a taste from the
distant past for a depersonalization as if someplace they
have never been before, the smell and taste can be the onset
of temporal lobe or complex partial seizures.
And that's why I thought it was an interesting
symptom to look into and think about.
Q And with respect to this physical, was there a
purpose to the physical that you were aware of when you
were assigned this independent medical examination?
A
Q
A
Yes, there was a purpose.
And what was that purpose?
The purpose was to determine from my physical
examination and all of the other data that I was presented
to review, whether with reasonable medical certainty there
was any kind of neurological damage that could be
objectified from the accident and whether it was
responsible for all of this change in behavior. That was
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1080
my job. That was what I was asked to do.
Q In your opinion, doctor, based on a reasonable
degree of neurological medical certainty, were any of the
symptoms that she complained of subjective symptoms
related, directly related to the accident she had on
December 9, 2008?
A Well my conclusion was, with reasonable medical
certainty, no. I didn't think so.
Q And when you say you didn't think so, what
specifically led you to that opinion?
A My neurological examination showed no higher
intellectual or any motor or physical abnormality.
The examination by personnel in the emergency room
at the time of the accident showed no signs of any injury to
the brain. Even though there was a scalp injury.
The seizure that developed months later was
witnessed only by members of her family. There was no
witnessing at any time in the course since the accident
until I saw her. There was no witnessing of a seizure by
anybody, any professional personnel or anybody in an
emergency room.
In addition to that, she was worked up for epilepsy
a number of ways. And there were no positive findings. She
was given a number of medications to control symptoms.
Whereas in a true bona fide case of organic epilepsy we
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1081
usually only use one medication. We try very hard to limit
that to one medication to eliminate side effects.
So, the reason that I come to my conclusion is,
simply stated, there was no objectification of an injury to
the brain and there was no objectification of a true
epileptic seizure. Which is the result of a brain injury.
And that's why I concluded with reasonable medical
certainty that this accident and this scalp injury was not
productive of a brain injury, and therefore, was not
productive of epileptic seizures, and epileptic seizures
were not the nature of this behavioral change.
Q Dr. Hausknecht was a doctor that saw her a few
times and he took an EEG of which I believe you have a copy
of. That is a five second piece of tracing out of 20
minutes.
At the time that you examined her did you review,
also in formulating your opinion, what that EEG showed? Do
you know what
A Well it was given to me as a representative
example, but this is ten seconds worth, not five. Ten.
Q
A
Dr. Hausknecht said it was five.
What it does, it lists over here the placements of
the electrodes on the skull which are standard placements,
and here is the tracing.
Now this copy is a very bad copy. And I must say
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1082
that I don't see anything in this particular ten second
sample that could be called an abnormality, and particularly
a paricsesible abnormality or epileptic abnormality or any
abnormality. I can only base objectively my interpretation
of his records on this example.
If this was given an as example, I don't think it
substantiates his conclusion.
Q Dr. Friedman, he testified and he said he had
conducted an EEG and he found that there was artifact and
it was minimally suggested
MR. RONEMUS: Objection. Could we ask a
question rather than leading?
THE COURT: Sustained.
Q Dr. Friedman said he did an EEG.
Have you seen any tracings from that EEG?
A No.
Q Have you read his report?
A I did, but right now I can't remember what it
said. I don't remember it saying that he reported
epileptic events. Could I look at it again?
THE COURT: Yes.
MR. RONEMUS: Right here. You want his
records?
MS. SCIRETTA: Yes.
MR. RONEMUS: Right there.
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1083
A I do remember what it said 'cause I reviewed it in
my report.
Q Oh, okay.
A Just one second.
(Whereupon, there was a pause in the
proceedings. )
A I was under the impression that Dr. Friedman's
report referred to Dr. Hausknecht's EEG.
(Whereupon, there was a pause in the
proceedings.)
MS. SCIRETTA: May I approach, Your Honor?
THE COURT: Yes.
MS. SCIRETTA: This is Plaintiff's 29.
(Whereupon, there was a pause in the
proceedings. )
Q Here is a better copy.
A I am looking at a report by Dr. Irving Friedman
dated 12/22/08 and titled electroencephalogram report,
Leslie Lariviere.
(Whereupon, there was a pause in the
proceedings. )
A First of all, he reports --
THE COURT: Wait. Is there a question?
THE WITNESS: Oh, sorry.
MS. SCIRETTA: There was a pending question.
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1084
I asked the doctor did he review it. He said he did.
And what were the findings.
Q
A
THE COURT: Okay.
Doctor, go ahead.
Dr. Friedman reports in his conclusion that this
is an abnormal EEG because of minimal diffused cerebral
dysfunction.
The reason I think he says that is because -
MR. RONEMUS: Objection as to why he said.
THE WITNESS: What's that?
THE COURT: Sustained.
MR. RONEMUS: I objected to what you are
about to say.
Q
A
THE COURT: And objection was sustained.
Next question.
Doctor, what is minimal cerebral dysfunction?
According to this report, the background consists
of 7 cycles per second activity up to --
asked him.
MR. RONEMUS: Objection. That's not what she
THE COURT: Sustained.
THE WITNESS: That's the answer.
THE COURT: Answer the question.
THE WITNESS: That's the answer.
MR. RONEMUS: Why don't you listen to her
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1085
question again and --
THE WITNESS: I did.
THE COURT: Hello. Don't argue with each
other.
THE WITNESS: I wasn't.
THE COURT: Doctor, excuse me, don't respond
to plaintiff's counsel's objections. Those are for me.
THE WITNESS: Mmm-hmm.
Q Doctor, in reviewing that, record's in evidence,
you may read from it.
In reviewing that report, would you say you had
earlier for your other examination, is there anything that
you see or learned from that report that would suggest
epileptic activity?
A
Q
A
No.
Why is that?
Because there is no activity that seizure activity
of any kind.
Q What exactly is the activity that Dr. Friedman was
referring to?
A He was referring to a slowing in the frequency of
the basic alpha rhythm by one cycle per second. That's
what he was referring to.
Q
A
What does that mean?
I am not sure, but it doesn't have anything to do
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1086
with epilepsy.
Q You can close that now.
At the conclusion of your examination was there an
impression that you arrived at based on her complaints, her
subjective complaints, your objective findings? Did you
come to a neurological medical impression?
A
Q
A
Yes.
And what was that impression?
That the records did not produce a neurological
diagnosis that she does not suffer from traumatic brain
injury. And that her seizures are psychological,
non-epileptic events and not epileptic in nature.
DTI?
Q
A
Q
A
Doctor, have you ever heard of a procedure called
Diffused tensor imaging?
Yes.
Yes.
MR. RONEMUS: Objection. No disclosure with
respect to DTI for this doctor.
THE COURT: Sustained.
Q Doctor, in a case such as this plaintiff's case,
have, would, in your opinion, other medical tests be a
benefit to assisting with any type of diagnosis for this
lady?
A For the diagnosis and treatment of her condition,
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA
yes, of course.
Yes. What would you suggest be done?
A video EEG.
1087
Q
A
Q Do you know whether a video EEG was recommended or
suggested by doctors who had seen her?
A
Q
A
Q
Yes.
And do you know if a video EEG was done?
It was not. According to what I know.
What would be the general purpose of an -- of a
video EEG? What would be the benefit of a video EEG in
this case?
A To be able to record the electrical activity from
the brain during one of the behavioral episodes and look at
the correlation. And that correlation would be able to
guide her treating physicians as to how best to treat her.
Q With respect to the seizures that she said she
sustained, or the seizures she said she sustained on April
19, 2009, that was witnessed by her husband, there was a
passerby who has worked in a doctor's office for 25 years
as an office manager. She is not a nurse or a physician or
anything of that kind.
Q
MR. RONEMUS: Objection.
THE COURT: Sustained.
Doctor, if a person who works in a medical office
for 25 years as an office manager, would that person's
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1088
opinion that she saw --
MR. RONEMUS: Objection. That's not what she
testified to.
THE COURT: Sustained. That's not the
testimony.
MS. SCIRETTA: You know we have a transcript.
THE COURT: Fine. So show me in the
transcript where we have what you are saying.
Q Doctor, when you say it was -- her seizure was not
witnessed by any medical personnel, what do you mean by
medical personnel?
A Somebody in a hospital; nurse, doctor, technician.
Q Would a layperson who works in a doctor's office
qualify, in your opinion?
MR. RONEMUS: Objection.
THE COURT: Sustained.
Q Doctor, in this case Miss Lariviere did not bite
her tongue, lose either urine or feces, had normal focal,
there were no abnormal focal deficits found in the hospital
emergency room record. She did not lose ... she was not
confused when she got to the hospital.
Would that symptomatology have any significance to
a doctor who is looking for epileptic seizures or to confirm
epileptic seizures?
A Yes.
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Q
A
DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1089
What would that mean?
Well you've just described the absence of all of
the signs that one would look for in a typical epileptic
seizure. So, that would be a very atypical presentation
for somebody who had just had an epileptic seizure.
Q So if she was not responsive at the time and her
eyes rolled back, and she stiffened up, what would you,
what could you categorize that in absence of loss of, no
loss of urine or feces or no tongue biting?
A Usually you can only make --
MR. RONEMUS: Objection. That's nothing what
he categorizes that report as.
MS. SCIRETTA: He was asked to evaluate for
seizures, too.
THE COURT: Approach.
(Whereupon, there was a discussion held at
the bench off the record.)
read.)
THE COURT: The objection is overruled.
Could we have the question read back?
(Whereupon, a portion of the record was
A It sounds like a seizure. And the cause of the
seizure has to be worked up with other methods.
When something sounds like a heart attack, you have
to do an EKG. When something sounds like a seizure, you
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1090
have to do EEG in all of his complexities.
Q At the hospital, though, they did an EEG.
Did you learn about the results of that EEG?
A It was my impression it was normal.
Q Would -- they also did blood work.
Would a CPK (sic) show whether someone had a
seizure?
A Not directly.
Q Doctor, when you examined her and went over the
sensory examination, did you, actually did that from head
to toe pinprick, checking her reaction to all the skin
changes --
MR. RONEMUS: Objection.
THE COURT: Sustained. Form.
Q Okay. Doctor, when you went over the physical
examination you did it from head to toe, correct?
Q
MR. RONEMUS: Objection.
THE COURT: Sustained.
Doctor, when you based your impression after your
physical examination, was there anything that, on the
physical examination that you would have considered to be
an abnormal finding or a suspected finding that you would
need further follow-up for?
A The only part of the examination that would
require further follow-up was her history, nothing that I
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1091
found in my physical examination, but the history is part
of the examination. So the answer is yeah, of course.
Q What specifically about the history needed --
A All of her symptoms and seizures and the question
about relations to the event.
Q Now, with respect to the history that you have
taken, were you also aware from taking the history and
having the husband present, that that was the one time they
saw that particular type of seizure and that the subsequent
seizures were different?
Q
MR. RONEMUS: Objection.
THE COURT: Sustained.
Doctor, when she told you she had other seizures
besides that one on April 19, 2008, did she describe for
you her subsequent seizures?
A No.
Q Were you aware that she was claiming that she had
ongoing seizures?
A
Q
I was.
With respect to the ongoing seizures, would you
expect that they would be identical to the ones she had on
April 19, her first seizure?
Q
MR. RONEMUS: Objection.
THE COURT: Sustained.
Doctor, is a seizure, the seizures that you
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1092
evaluated, would that also -- you said there was something
about the smell and taste that could be a precursor to a
seizure, right?
A
Q
A
Q
A
Q
you?
I did.
Would stuttering be a precursor to a seizure?
It could possibly be. Yeah.
Would headaches be a precursor to a seizure?
That also can be.
And in her case, did she complain about that to
A Well she complained of all those. She complained
of headaches. Very strong part of her symptoms. Yes.
Part of this large list of symptoms. Dizziness, headaches,
problems remembering names.
Q What significance did you place on it on that
history?
A Well significance only that somebody is telling me
what they feel after an injury. And then it's my job in
this particular situation to look at all the data, look at
her and come to a conclusion. That's the only
significance. She has a complaint and that complaint has
to be evaluated in terms of the accident.
It wasn't my job to look for the cause of all her
complaints apart from the accident. That's for the treating
doctors.
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1093
Q With respect to the complaint of seizure, you said
that you had considered psychological, non-epileptic basis
for the seizure?
A Again, what I said was that the absence of any EEG
abnormality that I could objectify with the absence of any
scanning abnormality with an absence of any neurological
abnormality on my exam, I concluded the seizures were not
epileptic. And the other categories of seizures do include
psychological non-epileptic seizures.
But I can't be in any way sure of what the cause of
her seizures is because I'm not her treating physician. I
only met her once.
Q With respect to your opinion, doctor, based on a
reasonable degree of neurological certainty, was the
accident of December 9, 2008 the proximate cause of her
complaints of seizures starting in April of 2009?
MR. RONEMUS: Objection. He just answered
that question. He can't he said answer.
respond.
MS. SCIRETTA: Not to that form.
THE WITNESS: That's not what I said.
THE COURT: I am going to allow him to
THE WITNESS: That's not what I was
THE COURT: Excuse me. I told you not to
THE WITNESS: I am sorry. I was talking to
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1094
myself.
THE COURT: Now you can answer the question.
THE WITNESS: I am sorry. Could you just
read the question again because it's wording that's so
important here.
read.)
A No.
THE COURT: Yes.
MS. SCIRETTA: May we have a readback?
(Whereupon, a portion of the record was
Q Can you explain your basis of your opinion?
A Well it's really very, very straightforward I
think. The accident did not damage the brain by any of the
causes I mentioned, by any of the criteria I have
mentioned.
The seizures have never been witnessed by a
professional who said this looks like an epileptic seizure.
There has been no electromyographic correlate that is EGG.
And that's what, that's the simple answer.
That it's very much like being asked to see if a
house burned down because there was a fire. How you are
doing that by witnessing somebody who was in the fire, he is
coughing and it's months later so he has a cough. And he
says cough came from smoke inhalation. You look at the
house, there is no evidence of any damage. You conclude
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1095
from somebody who was there, has a cough, that the house
burned down.
In the same way that's what the conclusion would be
if anybody wanted to make a correlation between this very
minor accident, neurologically speaking, and the events that
transpired. There is no objective evidence by standard
neurological methods that we use today in every day. There
is no objective evidence using the methods we use in
everyday clinical neurology that she has suffered a
traumatic brain injury. Therefore, the seizures which don't
have any objective correlates of epilepsy are not related to
the accident. No matter what else they might be related to.
Q Doctor, you, in your physical examination report,
you make reference to medication that she's on and you
testified to that a little while ago that she was on
several drugs.
What would be the significance of a patient that
has been ordered by her physician several antiseizure drugs
rather than the usual one or two?
A Well I can't answer, because to ask what the
significance is you have to ask the person who's treating
her. But in my opinion --
MR. RONEMUS: Objection.
THE COURT: You just said you couldn't give
an opinion.
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DR. APRIL - DIRECT EXAMINATION - SCIRETTA 1096
THE WITNESS: I am saying
THE COURT: The objection is sustained.
A I don't know the significance. I would have to
speculate.
THE COURT: The objection is sustained.
Ask a different question.
Q A patient like Miss Lariviere, doctor, would one
seizure medication be able to control her condition or is
that not something you can answer?
A I can't answer that. I don't know what her
condition is caused by. It's not caused by the accident.
Q Those medications, Keppra, the Xanax, the Topamax,
the Gabapentin, are they also used for other conditions?
Are they also ordered for other conditions other than
seizure?
A
Q
A
Q
They can be. Yes.
Did she complain of mood problems to you?
Yes.
Were any of the mood problems related to her
complaints of seizure or were they independent?
A Well she said she was very depressed by having to
take all of these medicines which she attributed to the
seizures.
Q Thank you, doctor.
THE COURT: Cross.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1097
MR. RONEMUS: You have a file, doctor, that I
can look at that you brought with you?
THE COURT: You want a few minutes?
MR. RONEMUS: Yes. Just two minutes.
THE COURT: Ladies and gentlemen, we are
going to take a break for five minutes or so.
All rise. The jury may exit.
(Whereupon, the jury left the courtroom.)
(Whereupon, there was a break in the
proceedings and then resumed shortly thereafter.)
MR. RONEMUS: I am ready.
THE COURT: Okay. All rise.
(Whereupon, the jury entered the courtroom.)
THE COURT: You may all be seated.
And cross.
MR. RONEMUS: Thank you.
CROSS EXAMINATION
BY MR. RONEMUS:
Q Good afternoon, doctor.
A Good afternoon.
Q How are you? Do you remember me?
A Yes.
Q December 2010, right? So a little over a year.
year ago is when we met in your office?
A I think that was the date.
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DR. APRIL - CROSS EXAMINATION - RONEMUS
Q Yeah. December --
MS. SCIRETTA: 29.
Q December 9 -- wait.
(Whereupon, there was a pause in the
proceedings. )
Q December 29, 2010.
Anyway, that's the day?
Certainly December.
Okay. You remember Mr. Lariviere?
Miss Lariviere?
Yeah. And Mr. and Mrs. Lariviere?
Yes.
1098
A
Q
A
Q
A
Q Can you tell us whether they're in court today,
either one of them?
him.
A
Q
A
I don't see her. I don't see him, if I remember
Okay.
I remember her better than I remember him. I took
a picture of her.
Q Okay. That's a picture of her as in a copy of the
report, right?
Yes. A
Q Now, you testified quite frequently on behalf of
defendants in court, correct?
A Well depends on what you mean by frequently. I
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1099
used to testify more frequently.
Q Okay. Well you review cases frequently behalf of
defendants?
A Yes, I do.
Q And you review about ten cases a week on behalf of
defendants doing these type of neurological reviews?
A
Q
A
Q
A
Q
A
More like three to four.
Three to four a week?
Mmm-hmm.
In the past did you do ten in a week?
Sometimes.
Did you cut down, three to four?
I don't know. Things have changed. They come up,
they go down.
of
Q At this point in time you do three to four --
A
Q
A
Approximately.
Just let me finish.
Three to four neurological examinations on behalf
they're all on behalf of defendants per week, correct?
Well not quite. Not all are on behalf of
defendants. Sometimes plaintiffs come in.
Q About what percentage of your independent
examinations are done on behalf of defendants?
A
Q
Probably 80 to 90.
And how many years have you been doing these?
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1100
Long time. Since 1980. A
Q Okay. And do you have a standard charge that you
charge for these examinations?
A Normally, yes.
Q What is it, about?
A About $500.
Q What you charged for Miss Lariviere's examination?
A Yes.
Q Now that whole examination took less than half an
hour. Would you agree with that?
A No.
Q How would you say -- first of all, we had an
interview in your office?
A
Q
Yes.
I mean they had an interview with you. That took
about 15 minutes?
A
Q
A
Q
20.
Okay.
15, 20 minutes.
Then you conducted an examination in your
examining room across the hall?
A
Q
A
Q
Yes.
Do you remember that day, by the way?
I do.
You remember when we got there you had no medical
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DR. APRIL - CROSS EXAMINATION - RONEMUS
records of her?
A
Q
A
Possibly. Yes.
Well when you say possibly --
I don't remember that specific experience. I
1101
remember her and what she told me, giving me her list of
complaints, talking to her and you.
Q Do you recall -- do you recall when they came into
your office that you had no -- you had been provided no
medical records regarding Miss Lariviere?
A I specifically don't, because now as a time when I
review the case I had all these records, so I don't
remember that experience. I don't.
Q Well, do you remember getting a copy of five, or
of her doctor's reports from me on this day?
A Yes, I do.
Q Okay.
A That I can remember.
Q Other than this, you had no medical records at
that time when we came in?
It's possible. A
Q Do you remember saying that you weren't going to
conduct the examination that day because -- you don't
remember? Do you remember --
A I don't remember the circumstances or what we
talked about because clearly that wasn't germane to what I
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1102
wanted to do; was to answer the question I was asked.
Q Okay. Well have you done about three or four
exams per week since that time?
A I suppose. Yes.
Q Approximately. Okay.
So, if you work 50 weeks a year, you have done more
than 200 examinations of patients in your office referred by
either defendants or plaintiffs since that time?
A And many, many more people who were sick every day
who come to see me. I have done lots, lots more than that.
Yes.
Q You have done a minimum number of examinations on
behalf of the Transit Authority, correct?
A I don't know. I have very few lately. I mean
over the years. Talking about 20 years ago.
Q
A
Q
A
Q
Yeah.
Generally speaking, yeah. Lately not so many.
I am talking over the years --
Yes, I have done a lot for the Transit Authority.
Let me finish. Then you can answer.
When you say you have done a lot for the Transit
Authority, would you say you have done over 300 examinations
on behalf of the Transit Authority over 20 years?
A I don't know. Honestly I am not prepared to
answer quantitatively.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1103
Q Okay. Well you knew the attorney who was handling
the case at the time, Miss Regina Regan, right?
A
Q
Yes.
Okay. You have done a number of examinations on
behalf of Miss Regan over the course of the years, true?
A I think that's a fair question.
MS. SCIRETTA: Note my objection to the
relevance.
A
Q
A
Q
Yes. That's a correct statement.
THE COURT: Overruled.
And is Miss Regan in court today?
She was. There she is.
Okay. About how many times would you say you
performed examinations on cases that Miss Regan was
handling at the time?
A I really don't know. I could say a handful and be
off or I could say three or four. I can't remember all.
Q Do you remember trying to call Miss Regan from
your office to determine whether or not you should proceed
with the examination on this day?
A
Q
A
Q
Yes, I do.
And you were not able to reach her, right?
I don't remember that.
Okay. Do you remember calling the company called,
I think Juris Solution?
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DR. APRIL - CROSS EXAMINATION - RONEMUS
A No. I think the front desk must have done all
that. I wanted to get on with the examination.
Q Well the front desk is your wife, right?
A Yes.
Q Yeah.
So she was -- just the two of you were in the
office, your wife and you on that day.
1104
Do you remember your wife trying to call or you
trying to call Miss Regan or the company Juris Solution who
had apparently sent you this case to do an examination?
A
Q
A
Q
May I answer this question?
Let me ask the question.
I thought it was the end of your question.
Do you remember either you or your wife trying to
call either Miss Regan or Juris Solution to determine
whether you would go ahead with the examination?
Do you remember that, yes or no?
A I really don't remember the details. All I
remember is we did the examination.
Q Okay. Have you coached attorneys in the past
about how to present a case?
MS. SCIRETTA: Note my objection.
THE COURT: Yeah. Can you rephrase that?
Q Have you instructed attorneys over the time you
worked with the Transit Authority about how they should
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1105
present a case or what questions they should ask in court?
MS. SCIRETTA: Objection to that line of
inquiry.
THE COURT: Overruled.
A The answer is on one occasion, yes. Long, long
time ago somebody asked me to come do a seminar.
Q No. I am talking about during the course of a
trial have you communicated with the attorney handling the
case on behalf of the Transit Authority, told him or her
what they do, should do as far as how to proceed during the
course of the trial?
MS. SCIRETTA: Order some -- objection.
THE COURT: Overruled.
A If I was asked that question I would say I have
done that on a number of occasions. This is a way I would
do it if I were you. Because the questions that were, we
are really talking about are medical. This is a way to
develop evidence in a medical situation.
Q So, would you consider yourself to be independent
if you are telling the Transit Authority attorney how to
ask questions or what questions to ask during the course of
a trial?
A
Q
Yes. I really would.
You think your this jury should consider you to
be independent even though during the course of the trial
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1106
you have instructed the attorney what questions to ask, for
example, or how to ask such a question?
A
Q
A
Q
You think they should still --
Absolutely.
You should still
I will explain why.
Okay. And isn't it true that during the course of
this trial you have instructed Miss Sciretta about what
questions she should ask or how she should ask such
questions?
Q
MS. SCIRETTA: Note my objection.
THE COURT: Rephrase your question.
Have you, during the course of this trial, had
e-mail correspondence with Miss Sciretta telling us what
her, what questions she should ask or how she should ask
those questions?
A
MS. SCIRETTA: Note my objection.
THE COURT: Overruled.
I have had e-mail conversations with her about
this case. Yes.
Q And during those e-mails have you told her what
questions she should ask or what areas she should delve
into and how she should ask those questions?
MS. SCIRETTA: Objection.
THE COURT: Overruled.
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DR. APRIL - CROSS EXAMINATION - RONEMUS
A I've given my opinion about ways I think the
information I think is important in this case should be
brought out to this jury. Yes.
Q Okay. And you still consider yourself to be
independent --
A Absolutely.
Q Let me finish my question.
1107
You still consider yourself to be independent, even
though during the course of this trial you have instructed
Miss Sciretta as to what questions she should ask or how she
should ask the questions, correct?
A I haven't instructed. And the answer to the
question about independent is absolutely. Yes.
I would like to explain.
THE COURT: You are not being asked to
explain.
THE WITNESS: Okay.
Q Isn't it true you sent her an e-mail March 24,
which is in your file, three pages, instructing her what
questions she should ask? How she should ask those
questions?
A Well you might let the jury decide that. I don't
know. Let's see what you are talking about.
Q Let me ask you some questions about this e-mail
was in your file.
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A
file.
Q
DR. APRIL - CROSS EXAMINATION - RONEMUS
Sure. If you found it there, certainly in my
Okay.
(Whereupon, there was a pause in the
proceedings.)
1108
Q Okay. With respect to Dr. Friedman it's, you told
Miss Sciretta that he's not an independent treating doctor,
but one chosen by the plaintiff's attorney.
Isn't that correct that you e-mailed her and told
her that?
A I was repeating something that we were talking
about before. The fact is that Dr. Friedman --
Q I didn't ask you that.
I am asking you did you
MS. SCIRETTA: Question
THE COURT: He is not responding to the
question. Overruled.
Q So, when you had discussions with Miss Sciretta
about what questions she should ask Dr. Friedman during the
course of this trial?
A
Q
Yes.
And did you tell her that Dr. Friedman should be
considered not an independent doctor in this case?
A No. More -- let me put it this way. I felt he
was a treating doctor and his relationship to the plaintiff
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1109
was treating and that she trusted him because he was her
treating doctor. But that he had been chosen by her
attorney, not by another doctor.
And we were talking about the general principle of
how patients in the medical community get referred to
specialists. And what I was saying was that treating people
are referred by treating people. When I am seeing patients
it's my colleagues who refer to me. And I treat those
patients.
Q
A
Okay.
Lawyers don't refer to me for treatment to answer
a question in the courtroom.
Q Do you know why they went to Dr. Friedman instead
of Dr. Maniscalco?
A They went to Dr. Maniscalco also.
Q
A
Q
Q
A
Q
Do you know why they went to Friedman rather -
I have no idea.
Did you read the testimony that no fault -
MS. SCIRETTA: Objection. Note my -
THE COURT: Overruled.
Dr. Friedman --
I didn't read it. No.
Okay. On one paragraph here you talk referring to
Dr. Friedman, page twelve, diatribe. You referred to
Dr. Friedman as a diatribe?
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DR. APRIL - CROSS EXAMINATION - RONEMUS
A Perfectly descriptive --
Q When I am done with the question then you can
answer.
A I understand.
Q Okay. You said that his page twelve diatribe,
that's what you are talking about, his testimony was a
diatribe?
A I don't remember page twelve. I can't answer.
1110
Q No. But do you remember writing this e-mail to
Miss Sciretta and calling Dr. Friedman's testimony a
diatribe?
A
Q
A
Q
A
Q
A
I
Yes.
The e-mail is
Do you remember writing the e-mail
I remember writing the e-mail.
--calling Dr. Friedman's testimony a diatribe?
Yes. A diatribe.
Q You consider that to be an independent analysis of
Dr. Friedman's testimony or someone who is biased on behalf
of the Transit Authority?
A
Q
A
That's independent. A diatribe.
That's fine. You answered.
Okay. With explanation.
THE COURT: You are not being asked for an
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1111
explanation.
THE WITNESS: I know. I understand.
THE COURT: You can answer the questions yes
or no, you should do that. This is cross examination.
Q Further down the page you referring to
Dr. Friedman, quote, the rest of his chatter is just that.
His remarks on page -- on 21 appear to be pandering.
Would you consider that to be an independent
analysis of Dr. Friedman's testimony, or someone who is
biased on behalf of the Transit Authority?
A I am not biased on behalf of the Transit
Authority.
Q Okay. So your answer
A I am biased on behalf of the truth. Yes, it's
independent.
Q Top of page two, you indicate can't drive in
traffic. Did you ever put a surveillance on her.
Is that something that you, as a doctor, typically
inquire with respect to attorneys about?
A Yes.
Q Did she tell you whether they had ever conducted
surveillance?
A
Q
A
No. No.
She didn't answer that question?
No.
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DR. APRIL - CROSS EXAMINATION - RONEMUS
Q Do you know whether the Transit Authority ever
conducted any surveillance of Miss Lariviere?
A I do not.
So you got no answer to this question?
I don't know.
1112
Q
A
Q When you are talking about surveillance, you are
talking about an investigator sitting outside their house
perhaps in a van with a video camera who could videotape
Miss Lariviere over the last three years, correct?
A
Q
Yes. That's what attorneys do.
Okay. And you don't know whether that's been done
in this case, true?
A
Q
No.
You have never seen any videotape of
Miss Lariviere doing anything --
A
Q
doing?
A
Q
correct?
A
Q
A
No.
-- other than what she says she is capable of
No.
You don't know whether any such videotape exists,
I do not.
Next line. Great cross on page 27. FF.
What's FF mean?
Follow pages following.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1113
Q Okay. So you are telling Miss Sciretta she did a
great cross examination of somebody, according to what you
wrote on the fourth line of page two?
A
Q
Yes. That's my independent opinion.
Your independent opinion was that the attorney for
the Transit Authority did a great cross examination?
A That particular situation, yes.
Q Okay. You are not biased towards the Transit
Authority whatsoever in your analysis?
A
Q
Not at all.
Okay.
(Whereupon, there was a pause in the
proceedings.)
Q Then you are talking about Mr. Lariviere's
transcript. You read that as well, correct?
A
Q
should
Q
A
Q
Yes.
And you coached Miss Sciretta about what she
MS. SCIRETTA: Coach. You know -
THE COURT: Don't use that word.
Well you, you
Commented.
-- wrote an e-mail making recommendations about
what she should and shouldn't do with respect to that,
true?
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1114
I think it was more of a comment. A
Q Okay. With respect to the husband's transcript
you said, no need to dwell on his rendition of accident.
Are you talking about the injury to the brain or
the seizure that she had in April of 2000
A
Q
A
Q
I don't remember.
You don't know what you are talking about?
I don't know what you are referring to.
Well let me show you. There's no need to dwell on
his rendition of accident. Let's cut to the chase.
A
Q
Do you know what you meant by that?
Yes.
So when you e-mailed that to Miss Sciretta you
said don't dwell on what Mr. Lariviere says about the
accident. Let's cut to the chase?
A Yes. Cut to the chase is very important. That's
what I would like to do now.
(Whereupon, there was laughter in the
courtroom.)
Q Okay. We will get to the chase.
A I hope so.
Q We're getting there.
I think you would agree that, you know, your
independence, whether you are actually an independent
witness or not is important in this case, true? That's an
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1115
important thing --
Think it's very important. A
Q Okay. Because do you know that you are the only
doctor called by the Transit Authority who has ever seen
Miss Lariviere?
A
Q
No, I didn't know that.
Have you ever graded other reports from other, any
other doctors on behalf of the Transit Authority who
examined Miss Lariviere?
A No because -- no.
Q I didn't ask you because.
A No.
Q Have you?
A No.
Q Okay.
(Whereupon, there was a pause in the
proceedings.)
Q
A
Q
You read Susan Brown's transcript, true?
Yes, I did.
And so you know that there was an independent
witness to this event which has been called a seizure
April 19, 2009?
A
Q
Yes. With an explanation.
Okay. And so when you said here on your direct
examination, when you said Mr. Lariviere was the only
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1116
witness to that, that wasn't correct because --
Sorry. A
Q On your direct examination when you testified that
Mr. Lariviere was the only witness to the seizure, that's
not correct, true?
A I don't think I said that. I say I think he was a
witness to the seizure. I knew Miss Brown had seen this.
Q You did?
A
Q
A
Yes.
How about the reports you wrote for this case?
Yes.
Q Did you refer to any other witnesses to the
seizure other than Mr. Lariviere?
A No. I didn't know at that time. I have known
since.
Q When did you find out that Miss Brown was a
witness to the seizure?
A
Q
A
Q
Sometime when I talked to the attorney about it.
When was that?
In the last five days.
So after the trial started then you learned that
there was actually another witness --
A
Q
A
Yes.
-- to the seizure?
Yes.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1117
Q Which is inconsistent with what you wrote in your
report that Mr. --
MS. SCIRETTA: Objection to inconsistent. It
predates the report. Predates Miss Brown.
THE COURT: Still inconsistent. Overruled.
Q Now you wrote in your report, only her husband
observed the grand mal seizure. That's not true.
A
Q
That was true at the time.
Well, it was true that you didn't know it at the
time. It wasn't true at the time. In fact, there had been
a witness since the time of the event?
A Without information I guess one can only say what
he knows at the time as truth.
Q Okay. When you wrote in your report, only her
husband was the only witness, that, now you have learned,
is not true?
A Yes.
Q You have learned what you wrote in your report
since that time, you have learned what you wrote is not
true, correct?
A Is not true now.
Well I don't want to argue. The answer is yes,
with explanation.
Q Okay. With respect to the plaintiff's testimony
you said, I would not emphasize the 1994 marijuana charge.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1118
It has nothing to do with the case.
That's what you told Miss Sciretta, right?
Nothing to do with the case. A
Q Right. Nothing whatsoever to do with the case. I
would agree with you on that.
A Well that's good.
Q
2005.
case?
A
Okay. Big life stressor. Sister dropped dead in
What, if any, relevance does that have with this
I think great losses like that have relevance to
everybody's life and to symptom production.
Q Okay. So, what's the relevance to this case --
A I am not sure because I can't get inside of this
person's head. It's not my patient.
Q
A
Q
When you said has great relevance
I think it should be explored.
Let me finish, then you can answer.
You have an opinion as you sit here today what
relevance the fact that her sister, as you said, dropped
dead in 2005, has to this case?
A I do. But I can't say it has to this case
specify. Therefore, I can't answer; but as to other cases
I have seen.
Q I am not asking about other cases.
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A
Q
A
Q
A
Q
DR. APRIL - CROSS EXAMINATION - RONEMUS
Okay.
I am asking about the case -
I understand.
-- we are here in court today.
I cannot say anything more.
Okay. So as you sit here today you have no
1119
opinion whether the sister dropping dead in 2005 has any
relation to the complaints Miss Lariviere has made?
A
Q
None. With explanation.
Okay. You wrote, she loves Dr. Friedman because
he has stuck with you.
Is it your opinion Miss Lariviere loves
Dr. Friedman?
A That's a figure of speech. It means a patient's
attached to doctors, and everybody knows that. And he is
her treating doctor. He has a special domain in this case.
Q Special domain. He is the one who has seen her
since immediately after the time of the accident up until
today?
A
Q
Absolutely.
And so he is in a better position than perhaps any
doctor to give an opinion about her to this jury, correct?
A
MS. SCIRETTA: Objection. He is calling -
THE COURT: Overruled.
Absolutely not. With explanation.
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DR. APRIL - CROSS EXAMINATION - RONEMUS
(Whereupon, there was a pause in the
proceedings.)
1120
Q Okay. So, then at the end of the pointing these
things out you make recommendations to Miss Sciretta.
In conclusion, Miss Sciretta, I would say I do not
think any of these statements by deponents and witnesses
really changes the arguments I have raised and I have
discussed with you now on two different occasions.
What I am
MS. SCIRETTA: The attorney/client. Also my
objection in preparation for litigation.
THE COURT: Approach. Approach. Approach.
(Whereupon, there was a discussion held at
the bench off the record.)
THE COURT: Let's continue.
(Whereupon, there was a pause in the
proceedings.)
Q Okay. So, just finishing up this e-mail you sent
to Miss Sciretta, you said in conclusion, Miss Sciretta, I
would say I do not think any of these statements by
deponents and witnesses really change the arguments I have
raised and discussed with you now in two different
occasions.
A
That's what you wrote there, right?
Yes.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1121
Q Okay. So, you have discussed how she should
present this case on two occasions before the time of this
e-mail?
MS. SCIRETTA: Note my objection to the
topics that we discussed at the time.
A
Q
A
THE COURT: Overruled.
Not quite.
Well you had two telephone conversations with her?
No, no, no, no. We are not talking about the
nature of communication, we are talking about the
substance.
Q No.
When you say here you are talking about two
different occasions, you have discussed with her on two
different occasions, were these in person meetings or over
the telephone when you had discussions with her about this
trial coming up?
A
Q
Yes. And your question related to --
I didn't ask you anything else. Just answer the
question, if you don't mind.
A
Q
I am not sure. What's the question?
My question was, when you discussed with her on
two different occasions, what is it, in person or over the
telephone?
A Oh, no, it was on the telephone.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1122
Q Okay. And during those telephone conversations
did you discuss with her what questions she should ask and
how she should present the case to the jury?
A
Q
A
In so doing, yes. Yes.
Okay.
With explanation, again.
Q Okay. All right. So ... so just so we're clear,
your diagnosis is that she does not have a brain injury?
A That's correct.
Q Your diagnosis and your opinion is that the
accident that we are here about did not injure her brain at
all?
A
Q
That's correct.
Okay. Following the time she left the emergency
room on the date of the accident, December 9, '08, what did
she do for the next week?
A I don't know.
Q Wouldn't that be important in you deciding whether
or not she had a brain injury?
A
Q
No.
Doesn't matter? Doesn't matter if she went back
to work or if she spent the week in bed?
A Well all of that has relevance to her treatment,
but not to the question we are raising here that I am here
for.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1123
Q Okay. Well you are here to say whether or not she
had a brain injury?
A
Q
A
Q
That's correct.
And your opinion, she didn't have a brain injury?
That's correct.
You are telling the jury it didn't matter for the
week after the accident what she did, true?
A No. With explanation.
Q Well did it matter what she did during the week
after the accident?
A No. With explanation.
Q When you say no, with explanation, you mean it
didn't matter but you want to explain why it didn't matter?
A
Q
That's what I mean.
Okay. So, you are saying when you say no, it
didn't matter, then it didn't matter to you whether she
went back to work the day following the accident or whether
she remained in bed unable to move for the week after the
accident?
A Well
Q Is that what you were saying?
A I would say the latter. She moved very well when
I saw here. She didn't have a paralytic injury.
Q
A
Well was she in bed with headaches and vomiting?
She could have been. She had all the symptoms.
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Q
A
Q
DR. APRIL - CROSS EXAMINATION - RONEMUS 1124
Doctor, please. Please.
I don't know. I didn't follow her the week after.
I am just asking. Just don't interrupt me. Okay?
I mean the -- you have been in court for 20 years.
You know the rules.
MS. SCIRETTA: Note my objection to his
lecturing the witness.
THE COURT: Overruled.
Q Just let me finish the question.
THE COURT: Doctor, just answer the question
and only the question.
THE WITNESS: Thank you. I will.
Q Okay. All right. So it's your opinion that she
had no brain injury following the accident?
A
Q
A
Q
That's what I said.
As a result of the accident?
That is what we said.
You have read the report of Irving Friedman? The
reports of Dr. Friedman, correct?
THE COURT: Yes?
THE WITNESS: I have. Yes.
Q Okay. And you understand that Dr. Friedman is of
the opinion she sustained a traumatic brain injury from the
accident?
A Yes.
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DR. APRIL - CROSS EXAMINATION - RONEMUS
And you disagree with him?
I do.
1125
Q
A
Q
A
Q
And you have read the reports of Dr. Hausknecht?
I have.
He is a neurologist who examined her on three
different occasions I believe, correct?
A
Q
A
Q
Yes.
Conducted an EEG, correct?
Yes.
And by the way, the ten seconds of EEG, who gave
you that page?
A
Q
A
Q
A
Q
The attorney.
Miss Sciretta?
Yes.
When did she give that to you?
In the last two weeks.
Okay. When you wrote your report you had never
seen that, as you call it a bad copy, of the copy ten
seconds of the EEG?
A
Q
That's correct. No, I haven't.
You never seen the actual EEG itself, whether a
printout or on a computer screen --
A No.
Q
A
-- that Dr. Hausknecht conducted?
No.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1126
Q Okay. So, you understand, Dr. Hausknecht's
opinion is that Mrs. Lariviere sustained a traumatic brain
injury from this accident, correct?
A
Q
A
Q
I do.
You disagree with Dr. Hausknecht?
I do.
Okay. Dr. Greenwald, I think Dr. Greenwald, you
had his reports, right?
A
Q
I read them.
You know he is a specialist in treating brain
injury patients up at Mount Sinai?
A
Q
A
Q
A
I know who he is. Yes.
You know who he is? Have you met him before?
Yes.
Have you testified in cases where he's testified?
I don't know.
Q Okay. And you understand that Dr. Greenwald
treated her over the course of about a year?
A
Q
year?
A
Q
A
Q
I do.
And how many times did he see her during that
I don't know.
Was it once or twice? Do you have any idea?
I have no idea.
You haven't read his trial testimony?
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1127
A I read -- I didn't read his trial testimony.
Q Okay. I want you to assume he testified he saw
her I think eight times over the course of a year and once
again in February in preparation for trial. So, total of
nine times, about a half an hour each time. .Okay.
And you understand that Dr. Greenwald's opinion is
that Mrs. Lariviere sustained a traumatic brain injury as a
result of this accident, correct?
A
Q
A
Q
reports?
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
Yes.
You disagree with him?
Yes.
Okay. Dr. Hibbard, have you read Dr. Hibbard's
Some of them.
Which ones have you read?
I don't remember.
Are they reflected in your report at all?
No.
When did you get Dr. Hibbard's reports?
Later.
When?
Recently.
Within the, since the time the trial started?
Yes.
Okay. And you know Dr. Hibbard is a
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DR. APRIL - CROSS EXAMINATION - RONEMUS
neuropsychologist?
A I know her very well. She has seen many of my
patients.
Q Okay. You think she is a competent
neuropsychologist?
A I am not going to answer this question.
Q
A
Q
Okay.
Because that's not relevant.
THE COURT: Don't tell us why.
THE WITNESS: Mmm-hmm.
Okay. Do you know how many days Dr. Hibbard
conducted examinations of Miss Lariviere?
A I do not. No.
Q The report you saw here, did that indicate how
1128
many days she tested Miss Lariviere for neuropsychological
testing?
A I can't remember.
Q Do you have the report with you?
A No.
Q Where is it?
Could be in the chart. Chart's on your desk.
Take a look. See if it's in your chart.
(Whereupon, there was a pause in the
proceedings.)
A
Q
A I don't know where it is.
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Q
A
Q
A
Q
report?
A
Q
A
Q
DR. APRIL - CROSS EXAMINATION - RONEMUS 1129
If it's not in your chart, where else could it be?
It could be in -- I don't know where it is.
Where were you when you received it?
I am sorry. I don't remember the detail.
Do you remember -- did you read Dr. Hibbard's
I read Dr. Hibbard's report.
Did you read one report or more than one report?
I can't remember.
Other than Dr. Hibbard's report, is there anything
else missing from your file?
A
Q
A
Q
A
That I read?
Yes.
Hausknecht's reports.
That's not in there?
I don't have them in here, I don't think. I have
Friedman's reports. I don't know.
Q Do you know where Hausknecht's reports might be?
A They might be in my office. I may have only taken
part of the chart with me.
Q Do you have a separate file for this case in your
office?
A This was the separate file, but in looking through
it I might have left the other part there. There was no
specific reason I would have done that.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1130
Q I am just asking you if there is anything else
missing other than Dr. Hibbard's reports and Hausknecht?
A
Q
No.
Okay. All right.
So, having read Dr. Hibbard's reports, at least one
of her reports, you understand Dr. Hibbard, after conducting
a full battery of neuropsychology exams is of the opinion
Miss Lariviere sustained a permanent brain injury as a
result of the accident?
A I understand that. And I would like to explain
because it's important. I know Dr. Hibbard well. I know
how she works. I know how I work with her.
Q Okay. You understand that that's her opinion
after conducting a full battery of neuropsychology exams,
true?
A I do understand that.
Q Certainly a neuropsychology exam is the standard
type of exam to determine whether someone testified a mild
traumatic brain injury from an accident, correct?
A No.
Q
A
Q
A
Q
Okay. Well that's -
I disagree.
You disagree?
Very much. Strongly.
Something that can assist a neurologist in
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1131
understanding the type of brain injury someone sustained in
an accident?
A
Q
A
Q
A
analysis.
Q
A
Q
A
Q
A
Absolutely not.
Doesn't help you at all?
Not at all. And I will tell you why.
Dr. Schuster, have you read Dr. Schuster's report?
Yes. Dr. Schuster prepared the life cost
Yeah. What else did he do?
I don't remember. He did psychological testing.
What else did he do?
I don't remember.
Where is his report?
I don't know. It's another one that's missing,
but I did read it.
Q
A
When did you read Dr. Schuster's report?
Mmm. Well my memory says to me I think I have had
that a long time, but I don't think I referred to it in
here. However, it's in my chart and I did see it.
Q It's in your chart now?
A No.
Q You refer to it in your report of your examination
of Miss Lariviere?
I have five different reports that I gave you that
you refer to in your report.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1132
A
Q
Right. That's where I got it. I got it from you.
So you had it as of the date you examined --
A
Q
A
Q
A
You are teasing me.
I am teasing you?
That's right.
I am teasing you?
Okay. All right.
(Whereupon, there was laughter in the
courtroom.)
Q I am not trying to tease you, doctor, I am just
asking questions.
A It does seem that way.
Q I am not trying to tease you.
You have, according to your report, you have
Dr. Schuster's report as of the day you examined
Miss Lariviere?
A
Q
I did. I did. I read it.
You know he prepared a life care plan where he
recommended certain things he says she needs. He also did
a neuropsychological examination?
A Yes.
Q And I don't, I don't know if you remember he gave
an evaluation of whether or not she was capable of working
a vocational assessment. Those are the three things he
did?
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too.
A
Q
A
DR. APRIL - CROSS EXAMINATION - RONEMUS 1133
Yes. That's what he does. I know Dr. Schuster,
You know him, too?
Yes.
Q Dr. Schuster's of the opinion that she can't work
because she has a permanent brain injury and it's a result
of the accident?
A I understand that.
Q You are aware that's his plan?
A
Q
A
Yes.
Okay. And you disagree with Dr. Schuster?
For a number of years. I can explain the error of
his logic.
Q Okay. All these people are in error. All their
opinions that she has a brain injury are in error. You are
the one that's correct, right?
A It's not because I am absolute truth, it's because
in this case the facts don't substantiate it. I am not
claiming to be absolute truth.
Q Okay. I hope not.
A
Q
No.
Okay. Finally, Dr. Luciano. You had his report.
He is a specialist in epilepsy, correct?
A
Q
Yes. He is a good one. A good person.
He is of the opinion that she, Miss Lariviere,
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1134
sustained traumatic epilepsy or seizures as a result of the
accident?
A I am not sure of that. Should we go over his
report? I don't think that's what it says.
Q You have do his report?
A I thought so. I hope so. It's very important.
(Whereupon, there was a pause in the
proceedings.)
A
Q
A
Q
A
Q
A
No. This is Dr. Schuster right here.
You have Schuster?
I do have Schuster.
Schuster is a very small report.
All right. I am not going to waste time.
You had his report?
Yes.
You saw his opinions?
They're very important. I don't think that's what
he really said.
Q Okay. Well if it's not I am sure Miss Sciretta
will correct us.
A Okay.
Q
Q
Let's move on. I want to finish.
MS. SCIRETTA: Can I get a copy?
THE COURT: No. He is moving on.
Initially the report of Dr. Lipton regarding the
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DR. APRIL - CROSS EXAMINATION - RONEMUS
MRI done at Montefiore, did you ever see that?
A
Q
No.
Are you aware she had an MRI performed up at
1135
Montefiore in 2011? That was the radiological report was
done by Michael Lipton?
MS. SCIRETTA: Objection. He said MRI. DTI
was what I started to ask him. It's not the same.
Q Are you aware she had -- she had an MRI at
Montefiore in 2011 that was reported by Dr. Lipton?
A
Q
I don't think I saw that report.
Okay. You don't know what the results of that, of
those testings, of that test would be?
A No. No, I have seen reports that MRis were normal
but I didn't know who did them.
Q Okay. You have never seen an abnormal report of
an MRI, correct?
A
Q
A
Q
A
Q
A
Q
Of the magnetic resonance imaging, no.
Diffused tensor MRI?
I have not heard about diffused tensor MRI.
Done in this case?
No. I have heard of an MRI.
Okay.
That's what I was talking about.
Okay.
(Whereupon, there was a pause in the
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1136
proceedings.)
Q All right. Just briefly I want to just go over
the complaints Miss Lariviere's had regarding
radiculopathy.
You are a neurologist, right? And she saw an
orthopedist, Dr. Lichardi.
Do you have Dr. Lichardi's records?
A It's not even cognizant of that being a major
issue in this case.
Q Well whether it's a major issue or not, I want to
go over it and --
A I don't have it. No.
Q Okay. You don't have it. Let's talk about that.
(Whereupon, there was a pause in the
proceedings.)
MS. SCIRETTA: Objection. This is beyond -
THE COURT: Sustained.
MS. SCIRETTA: If he wants to hold us to an
IME report --
THE COURT: I heard you. And I ruled.
Q Have you ever seen records from Hamilton Medical
Center or Dr. Lichardi?
A
Q
I have, but not in this case.
Okay.
(Whereupon, there was laughter in the
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DR. APRIL - CROSS EXAMINATION - RONEMUS
courtroom.)
I am talking about this case.
No, I know.
Okay. You don't know what those records show?
Not in this case.
1137
Q
A
Q
A
Q Okay. So these records are in evidence, Exhibit
Number 3.
(Whereupon, there was a pause in the
proceedings.)
Q And if they show that she had a left C5-C6
radiculopathy, tell us what that means, radiculopathy?
A Well it means that something is causing
dysfunction of the nerve root that comes out of the
cervical spine and goes down to the muscles of the upper
arm and often causes pain and numbness, sometimes weakness.
Q
A
Q
Uh-huh.
And is very disturbing.
Okay. And do you know that she was diagnosed with
a left C5-C6 radiculopathy at Hamilton Medical Center?
Hamilton Medical Service?
A
Q
MS. SCIRETTA: Objection.
Do I know?
Yes.
THE COURT: Overruled.
You can answer this question.
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A
Q
DR. APRIL - CROSS EXAMINATION - RONEMUS 1138
I can answer. No. I am not aware of it at all.
Okay. All right. I want you to assume that these
records that are in evidence say that on March 24, 2009,
right, March 24, so, January, February, March, that's more
than three months after the accident, the opinion is, urn,
Miss Lariviere is status post motor vehicle accident versus
pedestrians on December 9, 2008.
right?
A
Q
This means she was hit by a bus in this case,
Yes.
She continues to be in excruciating pain in the
cervical region more on the left paracervical area.
What's the paracervical area?
A Neck to the, neck down on to the shoulder.
Q Left shoulder, burning sensation. She can barely
stand her clothes. She cannot stand, tolerate either moist
heat or cold. Physical therapy worsens her symptoms. She
ends up with a migraine headache and throwing up after the
ultrasounds and TENS. And that she is disabled, according
to this doctor.
Do you have an opinion whether that condition at
that time was the result of the motor vehicle accident
December 9, 2008?
MS. SCIRETTA: Objection. He didn't -
THE COURT: Sustained.
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DR. APRIL - CROSS EXAMINATION - RONEMUS
Q Do you have any opinion about her, the
radiculopathy that was referred to in these records,
whether it's the result of the accident or not?
1139
MS. SCIRETTA: Same objection. He did not -
THE COURT: Sustained. Approach.
MR. RONEMUS: I will move on.
THE COURT: Okay.
MR. RONEMUS: I am about done.
Q Okay. Finally, doctor, I think you made a
diagnosis that she doesn't have seizures or brain injury,
but she has what you call PNEA, psychological non-epileptic
activity.
A
Q
Is that what that means?
Yeah.
So, your diagnosis, she has, I think you said she
has seizures but they're the result of a psychological
condition?
A I can't be sure of that. I can't be sure of the
etiology. But I can tell you with absolute relevant
medical certainty based on the facts of this case that it's
not due to traumatic brain injury from this accident.
And again I will explain why.
Q Well what's it due to then?
A I don't know. But, you know, I am not the
treating doctor. And there is so many causes of seizure
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DR. APRIL - CROSS EXAMINATION - RONEMUS
that is not epileptic. And Dr. Luciano asked for the
definitive gold standard test. It wasn't done.
Q All right. You said that before.
1140
So, the symptoms that she reported to you, you are
not doubting she had those symptoms she complained to you?
A
Q
Not a bit. She is suffering.
She is suffering. Okay.
And she is suffering the list that she gave you,
included she can't remember --well they're in your report,
right?
A
Q
A
Q
They're right here.
Can't remember how to spell?
Right.
Adding no longer have control of her money. I
have a stuttering problem.
You want to follow along, just make sure I am
reading them right?
A
Q
A
Q
A
Q
I am sure you are. I will be glad to do that.
Okay. Got them?
Which page are you on?
I am on number four.
Okay.
I have a hard time concentrating on anything, on
one thing. Number five, don't remember what I said
yesterday. Or hour ago. Can't remember where I put
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1141
things. Number six, loss of sex drive. Number seven, loss
of hair. Number eight, I can't remember if I've taken my
meds on my own. Number nine, the seizures sucks.
A
Q
A
Q
That's right.
Anxiety and nervous all the time.
Mmm-hmm.
That's number ten.
Number eleven, migraines that make me so sick that
I am in bed for two to three days.
A That I vomit and I stay in bed in the dark for two
to three days.
Q Vomiting and staying in the dark.
Number twelve, I can no longer work. Number
thirteen, feeling dizzy every day. Afraid to be alone.
Number fourteen, I don't remember names, faces, old friends
and I used to be a hostess. And a very good one at that.
A Must have a different one from me because you are
always one number ahead. It's different writing. She must
have prepared several lists.
Q Okay. The next one is, I don't leave the house
that often without somebody.
A
Q
paranoia.
A
Yeah.
Going to different doctors all the time and
It's out of order, but it's the same information.
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DR. APRIL - CROSS EXAMINATION - RONEMUS
May I comment?
No, you may not.
Okay.
1142
Q
A
Q Those are the complaints she voiced to you that
day, right? Okay.
A
Q
THE COURT: Yes?
And wrote. Voiced and wrote.
You are not denying she suffers from all of those
symptoms and conditions, correct?
A Symptoms are always taken seriously.
Q Okay. And at that time when you examined her she
appeared tired, worn out and in pain?
(Whereupon, there was a pause in the
proceedings. )
A Just one second.
(Whereupon, there was a pause in the
proceedings. )
A Yes. But she was remarkably able to carry out all
the functions I asked her to do.
Q
A
Q
A
Q
A
Okay.
And no. No, I agree everything -
I didn't ask you --
I agree with you.
-- general neurological examination.
The answer is yes. Pardon me.
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DR. APRIL - CROSS EXAMINATION - RONEMUS 1143
Q The general neurological exam you told us about
was a normal neurological exam, correct?
A Yes.
Q Okay. That does not mean she is not suffering
from all of the things she told you about?
A No.
Q Okay. And you don't doubt her credibility in what
she told you that she's suffering from these things?
MS. SCIRETTA: Objection to the vouching.
THE COURT: He is not vouching, he is being
asked a question. Overruled.
You may answer.
A You can't comment on her credibility. Only a
treating doctor could do that possibly.
Q
A
Q
Okay.
But --
We have had treating doctor --
A You are talking about motivation report. About
motivation, all I can tell you, the facts are the case.
Q It wasn't your opinion that she was faking or
exaggerating any of these symptoms she complained to you
about, true?
A You know, that's always in the back of one's mind
when there is a reward at the end of the rainbow.
Q It's not what I asked.
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DR. APRIL - REDIRECT EXAMINATION - SCIRETTA 1144
So I can't exclude it completely. A
Q You didn't write in any report or anywhere, ever,
that she was exaggerating or faking these symptoms
whatsoever, true?
A There is no way I could be sure and write that in.
I could be sure there is no brain injury.
Q Did I ask you that?
A
Q
A
Q
That's all.
That's all?
Finished.
Good. Thanks.
MR. RONEMUS: Nothing further.
THE COURT: Redirect.
You have ten minutes and then plaintiff will
have five minutes.
MS. SCIRETTA: May I just see your list?
THE WITNESS: My list?
(Whereupon, there was a pause in the
proceedings. )
MS. SCIRETTA: Do you have Dr. Lucciardi's
subpoenaed record?
MR. RONEMUS: No. No, I don't have anything.
REDIRECT EXAMINATION
BY MS. SCIRETTA:
Q Okay. Doctor, on Dr. -- you were asked several
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DR. APRIL - REDIRECT EXAMINATION - SCIRETTA 1145
questions, you said you needed to give an explanation.
Did it change your opinion after reading
Miss Brown's trial testimony regarding the, what she
observed, that this was a seizure that was observed by a
medical personnel?
A No.
Q
A
And why is that?
Because it was a seizure of some kind. It was a
change in behavior and it was sudden and it lasted a
certain time. And it wasn't normal. That's a seizure.
But that is not epilepsy necessarily.
And some of these seizures that are not true
epileptic seizures are called pseudoseizures, look very much
like epilepsy. People often get treated as if they're
epileptic when they're not. That's why new developments in
epileptology Dr. Lucciardi himself asked for are very
important.
MR. RONEMUS: Objection. That's not what she
asked him.
THE WITNESS: Sorry.
THE COURT: The last part about the doctor is
out. It's not responsive.
THE WITNESS: So
THE COURT: No, you are finished.
Next question.
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DR. APRIL - REDIRECT EXAMINATION - SCIRETTA
Q Doctor, when you sent me this e-mail was it in
response to something I had sent you?
A No. It was a way of discussing my opinion.
Q
A
Q
A
Q
A
Q
Did I give you Dr. Friedman's trial testimony?
Yes.
And did I ask you to comment?
You did.
These were your comments?
Those are certainly my comments.
And you have pretty much, as counsel told
everyone, three pages here, but you were asked very few
questions regarding this.
What was your impression of, after reading
Dr. Friedman's trial testimony that you
Q
MR. RONEMUS: Objection.
that you wanted to explain to this jury
MR. RONEMUS: Objection.
THE COURT: Basis?
MR. RONEMUS: Can't comment on doctor's
opinion of Dr. Friedman's trial testimony.
MS. SCIRETTA: He asked him.
1146
THE COURT: No, no. He asked him about that.
Sustained.
MR. RONEMUS: If he hadn't want to comment on
the facts
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DR. APRIL - REDIRECT EXAMINATION - SCIRETTA
THE COURT: Rephrase that.
MR. RONEMUS: I have no objection to
commenting on the facts.
Q Doctor, with respect to the trial testimony of
1147
Dr. Friedman that you read, when you read his sworn
testimony was there, as a neurologist, reading about what
another neurologist was testifying to, did you have any
observations that would be pertinent to this case to tell
us and the jury?
A
Q
A
Yes.
What was that?
Namely, that he was overlooking the real facts of
the case in coming up with his formulation. There was
never a positive EEG, there were no MRis findings, CT
findings.
CT scanning is the one technique that has been
developed to put in emergency rooms. Every hospital budget
has a place for CT scan because it's the one single way of
ruling out traumatic injury to the brain when somebody comes
from a fall, a motor vehicle accident, a construction
injury, something falls on your head. This is the one way
we rule out trauma to the brain, skull fractures, swelling,
and bleeding.
There was none of that in this case. This was a
minor injury to the scalp. Dr. Friedman overlooks those
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DR. APRIL - REDIRECT EXAMINATION - SCIRETTA 1148
facts. He overlooks the basic facts of neurology in coming
to this conclusion about a cause and relationship. That's
why I really object to what he says; not his treatment of
the patient, that is wonderful. Treat symptoms any way you
can. Make people feel better. But this is about this cause
and effect relationship in this trial. And this is not
correct.
Q Did you also tell me that --
MR. RONEMUS: Objection.
THE COURT: Sustained. Unless that's
something that's in evidence.
MS. SCIRETTA: Well counsel read from --
Q Okay. Did you -- did you make an observation that
her prognosis might be improved after any kind of a lawsuit
settlement?
MR. RONEMUS: Objection.
THE COURT: Sustained. Leading.
Q Doctor, do you have any impressions about the
motivation of the patient --
MR. RONEMUS: Objection. There is nothing
ever been disclosed about that.
THE COURT: Sustained.
MS. SCIRETTA: You know, he makes -- it's not
one sided here.
Q Doctor --
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DR. APRIL - REDIRECT EXAMINATION - SCIRETTA 1149
THE COURT: No, but your question does not
stem from the questions on that document.
Q
You want to approach?
MS. SCIRETTA: No.
Doctor, when Dr. Lucciardi have an orthopedist --
you are not an orthopedist?
A
Q
No.
But an orthopedist who saw her a couple of weeks
after her accident came to an impression that there, this
is in evidence, that she's status post acute trauma to the
cervical spinal, some evidence of left shoulder rotator
cuff tendonitis sciatica that, doctor, include a C5-C6
radiculopathy?
MR. RONEMUS: Objection.
THE COURT: Basis?
MR. RONEMUS: She is asking a neurologist
what an orthopedist would include in their report.
MS. SCIRETTA: He asked them that question.
MR. RONEMUS: I didn't ask him what an
orthopedist would include in a report. I object.
THE COURT: I don't know what you are asking.
You need to rephrase the question.
Q You were asked a question by counsel that were you
aware that she, the plaintiff, was diagnosed with C5-C6
cervical radiculopathy. And the doctor who saw her, his
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DR. APRIL - REDIRECT EXAMINATION - SCIRETTA 1150
impression after seeing her and examining her was status
post acute trauma of the cervical spine in some evidence of
left shoulder rotator cuff tendonitis and left sciatica.
Would that, as a doctor, would that include a C5-C6
radiculopathy?
A Isn't that what you just read?
Q
A
Q
The sciatica?
It read there was a, is acute cervical trauma?
No. Says status post acute trauma to the cervical
spine, early evidence of left shoulder rotator cuff.
A
Q
normal?
A
Q
It could include a cervical radiculopathy. Yes.
There was an MRI taken by this doctor which was
Okay.
Would the MRI of the shoulder rule out any issues
with her shoulder that he thought might be the early stages
of ... rotator cuff tendonitis?
A I am going to have to defer to an orthopedist.
It's a purely orthopedic question.
Q This doctor also wrote that she may return -- she
returned to work for financial obligations?
A
Q
A
Q
She may return to work.
She did return?
I see.
But had to return to work for financial
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DR. APRIL - REDIRECT EXAMINATION - SCIRETTA 1151
obligations.
Were you aware of that?
A Well that's what I thought. You see, I didn't
think she went to bed paralyzed. I thought she carried out
her normal functions as best she could, even though you
suffered.
MR. RONEMUS: I object to that answer about
the paralyzed.
THE WITNESS: That's the impression I had.
MR. RONEMUS: Nobody said that other than
him. I object to that answer.
THE WITNESS: Sorry.
THE COURT: Sustained. That piece is
stricken. The rest of the answer will stand.
You have 30 seconds.
Q What did you want to add, doctor, with an
explanation to Dr. Lipton's, the questions stemming about
Dr. Lipton's DTI examination?
A Well I don't see any reason in this case for DTI
because there is no brain injury, and DTI is something that
relates to axonal injury in people who are in coma,
vegetative states. Really an experimental way at looking
at the diffused injury to the brain after major trauma.
Nothing to do with this case.
Q Did you ever --
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DR. APRIL - RECROSS EXAMINATION - RONEMUS 1152
THE COURT: This is the last question.
Q Have you sent patients for DTI, and for what
reason?
A Yes. We have a big magnet at Mount Sinai looking
for precise diagnoses of progressive brain degeneration,
such as the olivopontocerebellar degeneration, amyotrophic
lateral sclerovis, Parkinson's disease. Other degenerative
diseases that are progressive and crippling.
THE COURT: That's it.
MR. RONEMUS: I got five minutes.
THE COURT: Recross. You have five minutes.
RECROSS EXAMINATION
BY MR. RONEMUS:
Q Doctor, you just testified she did not have a
brain injury because the CAT scan taken in the emergency
room didn't show any evidence of a brain injury?
A
Q
And the MRI that were done.
Okay. Now, would you agree that the mild
traumatic brain injury often or rarely shows up on a CAT
scan?
A
Q
A
Q
No.
You don't agree with that?
No.
Would you agree that that rarely shows up on a
normal MRI exam?
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A
Q
DR. APRIL - RECROSS EXAMINATION - RONEMUS
No.
So you are saying that a CAT scan or MRI would
1153
diagnose someone with a mild traumatic brain injury?
A
Q
That's our today's gold standard.
Okay. Would you agree, this is in evidence, that
the white matter lesions detected by diffusion tensor
imaging correlate with persistent cognitive deficits and
mild traumatic brain injury?
A I don't think there is any literature of diffused
tensor imaging in mild brain injury that has been
recognized by the neurological community. Absolutely not.
Q Okay. Well suppose I told you what I just read to
you was written by the defense witness who they called this
morning?
A
Q
A
Q
you?
A
Q
A
Okay.
You still disagree with that?
I haven't read it.
You said you disagreed with what I just said to
I did.
That it, a DTI can be useful -
Yes.
Q -- in diagnosing cognitive impairments for mild
traumatic brain injury?
A Yes. With explanation.
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DR. APRIL - RECROSS EXAMINATION - RONEMUS 1154
Q And does the fact that this was written by
Dr. Zimmerman, who was the Transit Authority's last witness
before you, change your opinion at all?
A I don't know what it says.
THE COURT: Overruled.
MS. SCIRETTA: 2006.
THE COURT: I would have to -- overruled.
THE WITNESS: Sorry. What's overruled, my
question? (Sic)
THE COURT: The objection is overruled.
A May I see it?
THE COURT: I don't know there is any
question.
Q Does that change your opinion it was written by
Dr. Zimmerman? Yes or no? Yes or no? Yes or no?
A Is it because it is written by Dr. Zimmerman it's
changing my opinion or what you said?
Q
A
Q
No.
You said you disagree with what I just read to you.
If I understood what you said, I disagree with it.
Okay.
MR. RONEMUS: I have no further questions.
THE COURT: You may step down, doctor.
THE WITNESS: Thank you.
MS. SCIRETTA: May I have a follow-up?
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LESLIE KAREN LARIVIERE - TRIAL 1155
THE COURT: We do two rounds. We have done
two rounds with every witness. That it's. And it's
4:28.
(Whereupon, the witness was excused from the
stand.)
THE COURT: Ladies and gentlemen, all through
this trial we have not been here on -- you have not
been here on Thursdays. I want to finish this case by
Friday. So, we will be here tomorrow morning.
Whichever jurors have not been on time
previously, I expect you will be on time tomorrow. If
you are not on time, if this case goes into Monday,
it's because you have not been here. There's only a
very limited amount of testimony left, then there is
summations, charge, and your deliberations.
I am trying to get you out of here by Friday.
Close of business Friday. I can only do that if you
are here. I am pushing the attorneys to finish
quickly. Please, be on time.
All rise. The jury may exit.
(Whereupon, the jury left the courtroom.)
THE COURT: You may all be seated.
Summations. I am going to have to limit them
in time so, I would say an hour and a quarter each.
That's it.
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