e5 (,a In The Mafter Of.* Dawson v. Norfolk and Western Railway ComPany Allan Friedman, M.D. Vol 1, August 9, 1995 Overby Court Reporting Service 861 0 Windjammer Drive Raleigh, NC 27615 (919) 870-7124 or (800) 682-5267 O?IginalFi&-af?iedm.asc, 18 Pages Word Index included with this Min-U-ScripU Dawson v. @ Frledman, M.D. Norfolk and Western Railway Corapany VoL 1, Augmt 9, 1995 IN THE CIRCUIT COURT OF MCDOWELL COUNTY, WEST VIRGINIA TABLE OF CON-RENTS Larry E. Dawson, ) Wftness Direct Cross Redirect Recross PLaJntNf, ) Allan Friadmw, M.D. v ) At Law No. 94-C-491-K by Mr Ha)ak: 6- 1 5 17-18 Norlolk arid Westem Rall@y) by Mr. Watson: 15-17 Comparry, a corporation, ) EXHIBITS Defendant, ) Number Description Marked Deposftlon of ALLAN FRIEDMAN, M.D. I X-ray 5 Held at the Private Diagmstic Clinic Pago 4 Duke Medlcal Corder Durh@, North Carolina Page 5 Wedmsday, Augusl 9.1995 iii PROCEEDINGS 12:12 P.M. 12:12 P.M. [21 (Plaintiff's Exhibit Number 1 niarked for Volum 1 of 1 (31 identification prior tO the proccedings.) Pages I through 19 14] Today we are taking the dcposition of Dr. Page 2 [si Allan Friednian. My nanie is Beth Simpson. I WiU be APPEARANCES [si the videographer. David Overby will be the court For the Plairdiff Damon mreporter. We are with Overby Court Repo@g Scrvice. . Hajak, Esquire [a] OUr address is 861 0 Windjarnmer Drive, Raleigh, North . & Hajok [gi CaroHm. Today is August 9,1995. The timc is now 1294 Diamond Spdrigs Road [ioi 12: 1 0 PM. We are in the Private Diagnostic Clinic at Post Office Box 5369 [iii Duke Hospital. Th e witncss again is Dr. ALian Virginia Beach, Vlrglnia 23454 ii2i Fricdnian. We arc taking the deposition today on I>chalf For the DefendaM Norfolk and Western Raitway ii3l of the Ptaintiff, Iarry E. Dawson. Representing Mr. comp": [141 Dawson today we havc Mr. . . from the F= of Wade T. Wat@n. Esquire [isj . and . of Virginia Beach, Virginia. And on Bmrrgleid & Walson i,6i behalf of Norfolk and Wcstem Railway Company, we have Law & Com@rce Buliding. Suha 617 Bluefield, West %Arglnia 24701-3032 [i7i Mr. Wade Watson. This deposition is taken pursuant to Page 3 [181 the West Virginia Rules of the Suprcmc Court. [1g) Mr. .: My name is Fr2ncis . and I [2oi represent the Plaintiff, Larry Dawson. (211 Mr. Watson: My name is Wade Watson and 1 1221 represent the Defcndant, Norfolk and Western Railway. [2sj Mr. Haiek: If you would please now swear ;24i the witness. [251 (Whereupon, Overbry Court Reporting @ce Min-U-Scripto - Page 5 Allan Friedman, M.D. Dawson v. VoL 1, August 9, 1995 Norfolk and Western Radway Company Page Page 8 ii) Allan Friedman, M.D. [ii that specialty concerns? (2) was called as a witness, duly sworn and testified as [21 A: Sure; neurological surgery is a surgical (31 follows:) [3i specialty, which nieans that niy priniary mode of thcrapy [41 DIRECT EXAMINATION 12:14 P.M. [Ai is surg@, and it deals vath pmblems of the brain, of 151 By Mr. Haiek: [si the spine, of the spinal cord, or of the nerves that [6) 0: Dr. Friednian, as I stated previously, niy name [6i are running throtigh your body. m is . . and 1 rcprcsent @ Dawson. Lf you m Q: And are you certified by any national medical i8i could, for the jury's benefit, please state your fufl tBi associations in that specialty? [91 nanie and your business address? 191 A: I am cemffied by the American Board of [10] A: My name is AUan Howard Friedman, and my [loi Neurological Surgeons. iii] business address is Duke University Hospital, Durham, [ill 0: And what does that certification involve? [121 North Caro@. [12] A: In order to be certified by that board, you [131 0: And what is your profession? [13i have to finish an approved residency, take a written [141 A: I'm a physician. [14i exanlination, and two years into pr2ctice, your practice 11 5i 0: Could you briefly describe for the jury yotir [,sl is reviewed and you take an oral examination. fi6l educational background @th an emphasis on your medical [i6j 0: Is Larry Dawson a patient of yours? [i7l LrAining? [17] A: Yes, he is. [181 A: Certainly; I graduated from Purdue University 118] Q: Now I'm going to ask you some questions [igi with a degrce in Physics, Bachelor of Science degree. tigi concerning Mr. Dawson that require an answer to a [20] 1 went to the Universiry of l@ois, where I received r2o] reasonable degree of medical ccrtainty. Do you [211 my medical degree. That %ms in 1974. I spent a year [21i understand that te@ [22] of tmining under Dr. David Sabiston in general [221 A: Yes, I do. [23] surg@, DLike University Hospital. I then spent the [23i Q: And wifl you answer my questions in ternis of [24] next fwe years trairiing under Dr. Guy Odom and Dr. [24) reasonable medical cerla@? (2sl Robert Wilkins in neurological surgery, Duke Universiry [25] A: Yes. Page Page 9 [ij Hospital. I spent six months as chief resident for Dr. Ill 0: When did you first see Mr. Dawson for his 12) Charles Drake, in Ontario, Canada. And then I joined r2i neck in@ in 1994? r3l the staff at DLLke Hospital onjanuary 1, 1981. p] A: I'll be referring to my notes, but the first [4] Q: And what hospitals do you practice in here i4] note that I have was from August 23,1994. Is) locailv" 151 0: And do you know how Mr. Dawson came to see 161 A: I - the vast niajority of niy practice is at [6) you? M DLLke University Hospital. I occasionally see a patient M A: I had seen Mr. Dawson in the past and now he [e] in consultation at the Durham County Hospital or the iai had a new problem. [91 Durham V.A. HospjEal. (gi Q: What history did he give you in August of (i 0] 0: What medical socicties do you bclong to? [loi 1994? fil) A: I - well, I bciong to a lot of medical [ill A: Wcll, he told me he was hit by a crane the [121 societies. I belong to the Nortb Carolina [121 month before I saw him and that he had developed pain [13i Neurosurgical Society, NorLh Carolina Medical Sociery, [131 in his neck. radiating down his left arm. [14) the Southem NeLLrosurgical Society, the Southern [141 0: Did you perform an cxamination? [isi Medical Society, the American Association of 1151 A: Let nic just fuiish with the history. He told [16i Neurological Surgeons, the American Congress of [is) nic that the pain went to his index fmgcr and his [,7i Neurological Surgcons. fi7l thumb. He told me he had numbncss in those two digits. [18] 0: And of course, you are licensed to practice [18] He had told me he had difficulty bending his neck [igi medicine in the state of North CaroLina? rigi forward. I performed an exarriination at that time and I [2oj A: Yes, I am. [2o] found that hc had good strength in his arm, that hc had [211 Q: Do you have a specialty? [2i] good sensation in his arrri, but hc had diminished bicep [m A: Yes, I do. fm reflex. Whcn the doctor comcs by and taps your muscle, [231 0: And what is Lhat specialty? i23] that's a reflex, and his reflex over b is left bicep was t241 A: Neurological surgery. [241 dccreased. [25i 0: CoLild you bricfly describe for the jury what [251 0: Did you perform any other tests? Page 6 - Page 9 Min-u-scripft Overby Court Report@ Service Dawson v. AMn Friedman, M.D. Norfolk and Western RaHway Company VoL 1, August 9, i[995 Page 10 Page 12 ill A: No, but he came with an MRI scan. [ii findings, that would be my conclusion. [2) 0: And what is an MR] scan? [21 Q: That it is related? 131 A: An MRI scan is a - it's - it's not an [31 A: Yes, it is. [4] x-ray, but it's an x-r-ay like test that lets you look i4l Q: What course of treatment did you decide on [5] into the patient's spine, see not only the bones, but [5] for Mr. Dawson because of the ruptured disks in his [61 see the soft tissue, see the disks, see the ncrves, see [61 neck? Fn the spinal cord. m A: We tried anti-irfflanumtory medicine. The (8) Q: And did You review that MRI scan? [8] particular niedicine we used was Clinorfl and we tried 191 A: Yes, I did. [gj some neck traction. ['01 0: And what did it show you? 1101 0: And how did that go? [' 1) A: It showed that hc had a ruptured disk at - [ill A: That went pretry well. The patient's arm [121 between the flfth and the sixth bones of his neck. And [12] pain got better over the next p@od of time, although [13j he had another sniah ruptured disk between the sbith [131 he still has significant neck pain. 114i and the seventh bone of his neck. [14) 0: And how often did you continue to see Mr. 1151 0: So that wc are clear as to what we are lisl Dawson? 116] ta@g about vvith the jury, what do you mean by a 1161 A: According to my notes, I saw him on four ii 7i ruptured disk-? li7] different times. I saw him a month after the first I tal A: A disk@ is the cushion between the various [ie; exandnation, and at that time he was doing better. I (ig] bones that make up your spine and a ruptured disk means tig] saw him again in November of 1994 and then I saw him 1201 that there's a hole in the outer covering of the disk, (2o] fmally in March of 1995. 12ii and a piece of the disk has come out. (211 Q: Now, Dr. Friedman, are you famfliar with Mr. [221 Q: And what is the significance of that? r22] Dawson's job as a laborer for the railroad? [23) A: WeB@ it niay be of no signiflcance, but in [23] A: I'm familiar it's his job as described to mc. [241 Lhis case, the rupnlred disk at C" fit very nicely [241 Q: And do you have an opinion as to whether or [25] with Lhe patient's symptoms and neurological [25] not he can perform that job since his injury? Page 1 1 Page 13 iii examination ill A: During the p@od of time that I saw him, 1 121 Q: Now, Doctor, I'm going to refer you to the [21 did not feel Mr. Dawson could provide that - cowd [3] x-ray that I providcd you, and that's been niarked as t3i perform that type of physical labor. 14] Plaintiff's Exhibit Number 1. and if you could on that [4) Q: And do you have an opinion as to whether or [si x-ray. please, indicate to the jury what area of the [5] not he can perform that job into the future? [61 body we're talking about when we are ref@ng to C@ [61 A: I think that's speculative. I mean, again, m and C(@7. ri] as of the last time I saw him on March 7th of this 181 A: Okay, this is - can you see that? This is lal year, I didn't think he could perform that job. [gj Mr. Dawson's x-ray. This was done at St. Luke's 191 0: And what is the causc of Mr. Dawson bcing [iol Hospital in Bluefield, West Virginia and it was done on lio] unable to work@ at that job? [i 1] jldy 18,1994.And what we're seeing is we're seeing [11] A: It is the pain in his neck and the pain in [, 2i an x-ray taken from the side, so we're se@g his jaw fi2] his arm and shoulder. ii3i and his teeth and the back of his head, and here's his [131 0: What rcstrictions have you placed on Mr. (14] shoulder in the bottom. Aiid the various bones are [14j Dawson's physical activities because of this injury? [isj numbered, first bone, sccond bone, third bonc. Here's [151 A: 1 told him he could go back to light duty [i6l the fifth and sixth bone. Here's the sixth and seventh [16j work, but he couldn't lift more than 25 pounds. ii 7i bone, and the abnormahty of concern was right here in 1171 0: knd is it your opinion that that restriction ii8i this area between the fifth and sixth bone. tta3 is caiised by his injury? 1191 0: And could you circle that for us, please, 1191 A: Yes. [2oi Doctor? Thank you so much; based on your history, your wi Q: Have you assigned him any impairinent rating? [211 exan@tion, your findings, do you have an opinion as [211 A: Yes, I did. Using the Amcrican Medical [22i to whether or not the problems that you described in ro Asso@tion gliide, I assigned him a rating - (231 Mr. Dawson's neck are related to the rai@d injury of [23] Mr. Watson: Objcction. [24i July 7, 1994? R4] The Whness: - of four percent of his (251 A: Yes, based on the history and the physical 12si body, perffianent partial disability. Overby Court Repo@g Service Mn-U-Scripto Page 10 - Page 13 Allan Friedman, M.D. Dawson v. VoL 1 i August 9, 199 5 Norfolk and Weste-rn Railway Company Page 14 Page 16 By Mr. .: Ill 0: I believe that you have done a [21 0: And what does that signify, a four percent [2i heniiianiinectoniy earlier on Mr. Dawson back in 1991? [31 perniancnt parlial disability? [31 A: That's correct. [41 A: Well, the r-ating guide basicauy just rates [4) 0: And I believe that surgery was successful? [sl different parts of the body at different weights. I (5i A: That's correct. (6j mean if a person is a taborer who loses their right 161 0: He has testified in this case that he was [7] hand, obviously that's a significant loss, and has m able to rettirn to his work and vms not bothered by any [al forniulated to try to come up with some fair assignment. [8i pain. Let nie ask you, is there a significant [9] This would mean that he has - he's r-ated - he's four [9] difference between the surgery that you performed, [iol percent worse than when he first started. [io] h@larninectoniy on the litmbar spine, and the surgery [Ill 0: In your capacity as a physician, do you have [ii] that you would offer him on the neck. [i2] to niake deter@nations as to whether or not your [121 A: There's probably a significant difference in (13] patients have pain? 1131 the technical aspects of the surgery, but I think the i 141 A: Yes. [14] sorts of reSLLItS that one wowd hope for would bc about [15) Q: And is this neccssary, for insmnce, to order [i5] the same. (i6) appropriate medications? 1161 Q: Of course, he would have to agree to the [17] A: Correct. [17i surg@ before you would do it for him? [18) 0: Do you have an opinion as to whether or not [18] A: Absolutely, I wowdn't go to his house and [191 Mr. Dawson has had pain from this injilry? jig) drag him in. 1201 A: Yes. @201 0: And you said be was last here in March of i2li 0: Do you have an opinion as to whether or not r2ii 1995? [22) he'll have pain in the future because of his problenis? [22] A: Correct. [23j A: I have an opinion and I think he wW have r23i Q: Does he have another appointment to see you [24) some pain from this. [241 or is it on an as-needed basis? [251 Q: What do vou see as Mr. Dawson's future? [251 A: I believe it's on an as-needed basis, but I'm Page 1 Page 17 Ill A: Wcil, well, Lhat's quite specuiative. We'd lij not certain of that. [2) like to think that at some time he would get better, p 0: The surgcry that you're speaking of hcre on 131 but clearly he may have episodes of recurring pain in [3] the neck, as a neurosurgeon, that is a fairly common or [41 his neck and arin. [4] routine procedure for you, is it not? You do a lot of 151 0: Is the lifting restriction that you placed [sj theni? @61 upon him a permanent restriceion? [61 A: It's a fairly cornnion operation, yes. m A: No, it - it's certainly for the dumtion of m 0: And the success rate for that type of faj time I saw him, and as his condition changed, that tBl operalion? [9) rriight change. fgj A: In a patient like Mr. Dawson, it would be in o] Q: Do you think he'fl need any future treatment? [lo) the ball park of 80 percent. 111] A: He niay. We talked about surg@ on the [Ill Mr. Watson: I believe that's aU. [121 rUptUred disk. For the time being, he's declined that, [12] REDIRECT EXAMINATION 12:25 P.M. [13) but that's a I:>ossibiliry. [131 By Mr. Hajok: [14] Mr. Haiek: Please answer any questions [14) 0: Dr. Friednian, witb regard to any potential tisi that Mr. Wamn n-iight have for you. [isi surgery that niight be performed on Mr. Dawson, can you [16] CROSS -EXAMINATION 12:23 RM. [i6i say NOth 100 percent certainry that he would get better (171 By Mr. Watson: [17] if that surgery were to be performed? [lB] 0: Doctor, what rype of sur-gery would you offer 118] A: No, as I just said, I wowd not give you a [igi him? (191 hundred percent gliarantee that his - aL[ his symptoms [2ol A: I'd offer him a removal of a disk and ftision [2oj would go away. [213 of his neck at that lcvel. [211 Q: And what impact woLLid the fusion of the disks 1221 0: And if that surgery is successful, wfll that r2z have in terms of the mobwty of his spinc? Emi relieve his pain? [23i A: lt would cause him some slight loss of [24i A: lf it's successful, it wifl relieve his pain, [241 motion, but it would bc rather slight. It would be (2si yes. [2si about 15 percent of latcral rotation. So meaning Page 14 - Page 17 Min-U-Scripft Ovefby Couft Reporting e Dawson v. AUan FriedmaA M.D. Norfolk and western Railway Company VoL 1, August 9, 1995 Page 18 [,i norrrially where You can tlirn this far, he'd only be able [21 to turn this far. Q: And would it have any effect when considered 141 in terms of the prior disk fusions in the lower back? 151 A: He didn't have a ftision in his lower back. [6] Q: I'ni sorry, with the heniilaniinectomy. m A: No, I don't think there's any conipounding jol factors. 191 Mr. Haiek: Thank you; that's all I havc. [iol Mr. Watson: That's all I have. fil] (The proceedings were concluded at 12:26 [121 PM.) [131 [141 [15] [16) [17] [lBl [191 RDJ [211 [221 [231 [241 [251 Page 19 121 NORTHCAROLINA [3] DURHAM COUNTY 14) CERTIFICATE 151 1, Oavid L. C)verby. Notary/Reporler. clo [6] hereby @rtfty that AlLan Frledmn, M.D. ms duty sworn M by m P60T 10 the lakirig of the foregolng deposftion; [a] @ that this dvmklon @ taken by m and [9] tr@crt)ed under my d@ion and that the nimteen (101 pages @Ich cormthuto this deposhlon we a true and [i 1] =curate transcript ol the wk@s's testimrry [12] 1 cenffy that I m not coumal for, or 1131 oniployed by afther party in Ihis action. wr @ 1 114] irierested In the outcome of this actlon. 1153 I further conny that the stipulations 116) wrdained in this tmnserlpt were ergered irgo by 1171 Counsel, in rrry prom@, before the @ of this [18] @sftlon. 1191 IN WITNESS THEREOF. I hava hwourflo @t rny [201 hand this @h day of August. 1995. [21] [22] Davld L. OvertYy [231 Notary Public - [24) Wake Courdy, N.C.- [25] David L. @rtyy 127] Notary Public for the (28) State of North Camilm (29@ [30) My @mmisslon expires: Jmuary 14,19N Overby Court Reporting Service Min-U-Scripta Page 18 - Page 19 Lawyer's Notes