Document 5kwdNKLm189VVMXe36yewYke
1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS
2 ST. CLAIR COUNTY
3 F R A NCES E. KEMNER, et al 4 Plaintiffs, 5 VS. 6 MONSANTOCOMPANY, 7 Defendant.
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) No.80-L-970
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9 Before the HON. RICHARD P. GOLDENHERSH, Judge 10
11 REPORT OF PROCEEDINGS 12 J URY TRIAL
13 April 9, 1986 14
15 APPEARANCES:
16 MR. REX CARR and MR. JEROME SEIGFREID
17 on behalf of the Plaintiffs;
18 MR. K E N NETH R. HEINEMAN, MR. JOHN R. MUSGRAVE and MR. R I C HARD S. C ORNFELD
19 on behalf of the Defendant.
20 KIMBERLY GANZ, CSR, RPR, CM
21 Official Court Reporter
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1 BE IT R E M E M B E R E D , .that on April 9, 1986, the same
2 being one of the regular judicial days of said court, the
3 above-entitled cause came on regularly for hearing before the j
4 HONOR A B L E R I C H A R D P. GOLDENHERSH, one of the Judges of said
5 court, at the St. Clair County Building, 10 Public Square, in
6 the City of Belleville, St. Clair County, Illinois.
7 Whereupon the following proceedings were had:
8 (The following proceedings were had in chambers out 9 of the hearing and presence of the jury.)
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10 THE COURT: I have reviewed all of these matters 11 that we have b e e n discussing, and at this point in time I am 12 going to reserve ruling on the question that your motion
13 b a s i c a l l y that is p o s e d to the court and I want to see if
14 there is any s ubst a n t i a l change in these circu m s t a n c es that
15 have been related to the court. So I am reserving ruling on
16 that and we will p r o c e e d w i t h Doctor Cugell today-. ,
17 As far as what we are going to tell the jury, I am
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13 not going to tell t hem anything. There have been a number of j
19 times w hen witn e s s e s have 'disappeared, witnesses have 20 d i s a p p e a r e d and r e appeared at some point in time and t h e y 21 will be told something. I don't think I have to tell them
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22 anything today. I am not going to tell them anything today.
23 We will call Doctor Cugell back to the stand and we will pick
24 up with D o ctor Cugell where we left off.
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And so at this point in time, I am putting the
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2 motion to reconsider and your motion basically on hold*
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3 reserving ruling on it.
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4 MR. HEINEMAN: I am not clear exactly when you say 5 the m o tion to reconsider, v/hat do you mean, sir?
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6 THE COURT: You had filed -- the affidavit that you
7 filed Saturday, I told you Friday that if you filed anything,
8 I would read it, in effect I would treat it as a m o t i o n to
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9 reconsider my ruling on Friday as far as Doctor Suskind. Mr. j
10 Carr made a m o tion in the argument that we had subsequent to
11 that, in effect, to drop Doctor Suskind for the reasons that 12 he stated in that argument. Those are the two motions that, 13 they have not been formally written down or designated as a 14 motion, per se, but that is b a s i c a l l y the wa y I have treated
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15 b oth your p o s i t i o n and your position, so those are the two
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16 motions that I am talking about. 17 that I am talking about.
Those are the two positions
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18 MR. HEINEMAN: As to the question of when Doctor
19 Suskind would come back?
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THE COURT: Basically that is what we are talking
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21 about. So those, w hen I talk about the two motions, that is 22 what I am talking about.
23 MR. HEINEMAN: With respect to our request to take 24 an evidence deposition --
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THE COURT: I am glad you reminded me of that. I
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2 am denying your request to take an evidence deposition of
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3 Doctor Vilter. I don't think it would serve any useful
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4 purpose at this point in time. I think on the contrary, that i
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5 it would be -- it would really -- it would take time a way
6 from our proceedings here. We would either have to take time
7 off of trial in order to take the evidence deposition or we
8 would have to take time over a weekend for the evidence
9 deposition and possibly continuance of the evidence
10 deposition, taking another time off of a weekend w h ere time
11 should be spent in preparation for this case, in resting so
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12 that one can be ready for this case or taking another day off j
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13 of trial when one should be trying this case with the jurors i
14 present. I think that it is really not a r e asonable and 15 expediant expenditure of counsel's time or judicial time to 16 take his evidence deposition and at this point in time, I am 17 denying your motion for leave to take his evidence
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18 deposition. I think those are the things that were pending. <
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MR. HEINEMAN: Your Honor, for the record, we had
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20 suggested to Mr. Carr yesterday that the jury this m o r n i n g be
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21 told the following statement: "The testimony of Doctor
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22 Raymond Suskind has been interrupted for health reasons" end
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23 of quote, and that is what we had suggested to Mr. Carr be
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24 told to the jury and we would ask the Court on the record to
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1 do that today
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i 2 MR* CARR: Your Honor, we would not agree with that j
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3 either* As the Court has stated it is going to do, that 4 nothing should be said or the truth should be told the jury
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5 that he has not returned so as to complete his examination,
6 that he and his doctor state that he is unable to do so 7 because of his health* Not anything other than that. Either 8 what the Court has suggested, that is nothing at this time 9 and tell them something later on, or that simply stating that
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10 he has not returned so as to complete the examination of 11 him. He says he can't return* He and his doctor say he
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12 can't return b e c ause of his health.
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13 THE COURT: At this point in time, I would prefer 14 to tell them nothing. So I am, depending upon what
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15 eventually happens, I will tell them something but at this
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16 point in time I prefer to tell them nothing.
So,- b o t h of you
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17 can make suggestions at the appropriate time. I am not going I
18 to tell them anything. We will resume, rather, with Doctor
19 Cugell. 20 MR. HEINEMAN: Your Honor, for the record, I would 21 just like to state that it would appear that saying nothing 22 would indicate either perhaps that he had been bannished for
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23 some reason by the court in light of the difficulties that 24 the Court -- it appeared to the jury that the Court was
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1 having with the witness, or it would appear that for some
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2 reason he just refused to ever come back and neither of those j
3 is the case and, therefore, I am concerned about saying
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4 nothing to the jury and what their impression would be? 5 THE COURT; Well, I disagree. I think that saying
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6 nothing leaves, under an y in t e n t i o n of the situation, it is
7 easier -- depends upon what ultimately happens on this, to 8 make one statement and it will be easier to make that
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9 statement if I have not made a prior statement which may be 10 c ontradicted in the future by circ u m s t a n c es and by this 11 Court's ruling. There have b een times when people have
12 appeared and disa p p e a r e d and t h ere have been times when
13 people have appeared and then disappeared and appeared again
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14 and this is not a neop h y t e jury, obviously. I think -- I '
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15 don't see any danger of speculation in their mind. It will
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i6 be resolved way before any time that they will be rendering a 1
17 decision in this cause and I think that the best way to
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18 handle it at this point in time would-be to say nothing and
19 proceed. So that is what I am going to do. 20 MR. CARR; I have our response, Judge, to their 21 motion to strike the juror. 22 MR. HEINEMAN: Judge, you said something 'about
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23 substantial changes that could affect this thing with Doctor
24 Suskind. I am just won d e r i n g what the Court had in mind.
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X THE COURT: Well, I think it is p r e t t y obvious. We
2 have had a lot of argument about, you know, you have been
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3 here through the motions Friday. You wrote the letter 4 Saturday and you were here in the argument Monday and the
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5 argument Tuesday. You know what the total circumstance of 6 this situation is. If there is a s u b s t a n t i a l c hange in those
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7 circumstances, then I am reserving ruling to see if there
a is. You have b e e n here the same t i m e I have b e e n here. I
9 think you have bee n here the w h o l e time. X d o n 't keep
10 attendance but I think that you have and I think it is pretty
11 clear from what we have been talking about and what has
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12 transpired on Friday, Mond a y and T u e s d a y and over the weekend
13 as to what I am talking about. So, we will see if there is 14 any substantial change. Gentlemen, I think the jury is 15 here. I think we should go to trial-. 16 (The following proceedings were had in the hearing
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17 and presence of the j u r y ) .
18 MR. CARR: May -we a p p r o a c h the bench, Your Honor?
19 THE COURT: Yes, you may.
20 (Bench co nference had out of the hearing of the
21 j u r y . )
22 MR. CARR: One m a tter I forgot to clear up. If the
23 Court will recall, when I c o m m e n c e d examining D octor Suskind
24 about incineration and TCDD being formed, Mr. Heineman said
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1 it was outside the scope of direct. On February 10, 1986,
2 page 69 or 89, I don't k n o w which, he stated that iri response
3 to a question by Mr. Heineinan, as being exposed to TCDD, he 4 said, nI was, some of us are still being exposed, via 5 incineration." So, it was in direct t e s t imony and I just
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6 wanted to put that in the record at this point in time. That
7 is what X represented that it was in the direct examination.
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THE COURT: That is 80 something but I can't tell
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9 what page it is. 10 MR. CARR: It is on F e b r u a r y 10th.
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11 THE COURT: Thank you. Okay.
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j 12 MR. MUSGRAVE: Your Honor, Mr. Heineinan, of course, |
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13 was liere just a few minutes ago when we were in cham b e r s and '
14 obviously I was not here for Doctor Suskind's testimony. 15 THE COURT: That is correct, you were not.
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j16 MR. MUSGRAVE: And it could have been menti o n e d and
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17 he may have a response. I don't know. All X am saying is I
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18 will take back to Mr. Heineman what Mr. Carr has indicated
19 and if there is anything he w o uld like to respond to, I wou l d i !
20 like to have permission, to get the Court's permission, have
21 him make a response not during court time.
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THE COURT: Sure.
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(The following proceedings were had in the hearing
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24 and presence of the j u r y )
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1 MR. MUSGRAVE: Doctor Cugell, come forward, 2 please. 3 DAVID CUGELL 4 having resumed the witness stand, beingpreviously sworn,
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5 testified further as follows:
6 DIRECT EXAMINATION
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8 MR.JOHN R. MUSGRAVE. ! ii
9 Q. Doctor Cugell, you were, of course, I think last in |
10 this court r o o m back in the first week of Febr u a r y w hen your
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H testimony was interrupted and I am sure you realize and will 12 remember that you are still under oath and alth o u g h you are 13 not being resworn, you are still under oath as you were put 14 at that time? 15 A. Yes, sir. 16 Q. Okay. Doctor, we had talked about four of the 17 plaintiffs in this lawsuit by that time that had dots on
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18 Doctor Carnow's charts indicating at -least by Doctor Carnow's
19 interpretation abnormal pulmonary lung function tests, that
20 being Carol Dominguez, Felix Dominguez, John Dominguez and
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21 Michael Dominguez. Is that your recollection?
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22 A. Yes, sir.
23 Q. I think we had finished Michael and I wou l d like to
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24 move on now to Doro t h y Jennings who is another one of the
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1 plai n t i f f s that has dots on Doctor C a r n o w 1s charts for his 2 interpretation of pulmonary lung function tests that he says 3 were abnormal. There are four of these that Doctor Carnow 4 references on these charts and there are three different 5 types of named abnormalities within those tests, PVC, the 6 FEF75% and the M W . I know it has been awhile since we have 7 talked about those things. I am not going to have you 8 explain them generally right now but as we get into these, I 9 may ask you just to kind of refresh the jury's memory about 10 them. I w ould like to start with the first exam, p a r d o n me, 11 I would like to start not the first exam by date that Doctor 12 Carn o w has on here but one that was done before that. 13 Doctor, I have now handed you what has been marked 14 as Defendant's 1712 which is a spirometry of Dorothy 15 Jennings, the first one we have any record of in the records 16 that we have dated November 11, 1981 was done by the Boone 17 Clinic. Is that what was referred on what you have there, 18 Doctor? 19 A. Yes, sir. 20 Q. And can you tell us, Doctor, in reviewing that with 21 regard to the FVC, the forced vital capacity, your o p i nion as 22 to the findings there with regard to forced vital c apacity 23 for Dorothy Jennings on this exam? 24 A. The results of her, the measured values she
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j1 deliv e r e d at this time of 2.87 liters compares very favorably
2 with a predicted value for a person of her age and height of
3 3.08 or 93 percent of the predicted value and that is quite 4 normal. 5 Q. All right. Doctor. Tell us what is forced vital 6 capacityr just briefly if you would, to help refresh the
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7 jurors1 memory?
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8 A. The d e f i n i t i o n of forced vital capacity is the
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9 maximum amount of air that you can exhale following a maximum i
10 inspiratory effort. So, you suck all the air in and then you
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11 blow it all out until it is all gone.
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12 Q. And that is measured in liters and recorded? 13 A. Correct.
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14 Q. By the m a c hine that we talked about b e f o r e ? Ail 15 right. So, her PVC on this exam in November of '81 16 referenced by this test is normal, done by the Boone Clinic? 17 A. Yes.
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18 Q. And how about her FEF75%? That is another one of |
19 these findings?
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20 A. Further down on the page that is shown and the 21 actual value is .77. That means .77 liters of air per
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22 second, that is a flow rate. So, her performance on that
23 test was .77 liters per second. 24 Q. All right.
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A. And the predicted value on this report is 1*74
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2 So, she had less than half of the expected value at the time j
3 this test was done on that particular measurement.
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4 Q. Now, that FEF75% as opposed to the F V C measurement,
5 are you measuring the same thing or different things just by
6 way of refreshing the jury's memory about that?
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A. No. The first test we just described is merely a
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3 measu r e m e n t of how much air comes out. The test we have just iIi
9 discussed, the FEF75% is the measure of how fast the air
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10 comes out and this p a r t i c u l a r m e a s u r e defines that at a point i
11 when the lungs are relatively small when most of the air has
12 already been expired, so when the lungs are getting toward 13 the point of being empty, the rate at which the air comes
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14 out, of course, is much slower than when the lungs are full |
15 and this p a r t i c u l a r m e a s u r e of this lady shows c o n s i d e r a b l e 16 reduction of flow of the velocity of air movement when the
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17 lungs are small.
18 Q. All right.- So the FEF75% is a measure of rate as
19 opposed to volume? 20 A. That is right. 21 Q. The m e a s u r e of speed at w h i c h the air comes out?
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22 A. Correct.
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23 Q. Now then, is the FEF75% on this November of *81 24 Boone Clinic test, is it normal or abnormal in your opinion?
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1 A. Oh, no, it is c l e a r l y abnormal. 2 Q. But the F E V was n o r m a l ?
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3 A. Correct.
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4 Q. Is that something, is that u n u sual to have that in !
5 a situation, Doctor? Does that tell you anything?
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j6 A. Well, that patt e r n of lung function test results is
7 quite typical of certain types of lung impairment. It
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8 implies that there is some abnormalities in what we call a
9 smaller subdivisions of the airways. It implies that there j
10 is some changes in c e r tain regions of the lung but not in
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11 others.
12 Q. All right. We will come back to that. Doctor, as 13 we then look at the rest of these. Nov;, I want to m o v e on,
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14 then, to the next spirometry that we have a record of by 15 chronological date moving forward in time and the first one 16 that appears on Doctor Carnow's dot charts and that would be 17 what I will now hand you. Handing you what no w has b een
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18 marked as D e f e n d a n t s 1713, this says'spirometry from the
19 Boone Clinic done December 14, 1981, on Dorothy Jennings.
20 This would be just what, a little over a month later than the |
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21 one that you just told us about, is that correct, Doctor?
22 A. Yes, sir.
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23 MR. MUSGRAVE: All right. Your Honor, I have
i 24 copies of this 1713 that I would like to pass to the jury and \
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1 I do have copies of the earlier one that I could pass at the
2 same time. I would request permission to do that. I would 3 offer both of these into evidence* then, 1713 and 1712.
4 THE COURT: Any objections?
5 MR. CARR: None, Your Honor.
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6 THE COURT: Admitted without objection.
7 (Defendant1 Exhibits 1712 and 1713 passed to the
8 jury).
9 Q.
Now, Doctor, 1713 being the D e c e m b e r of *81
10 spirometry, with reference first to the forced vital capacity j
11 and that is the top finding on this spirometry, is it not?
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12 A. Yes, sir.
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13 Q. Looking at the one that is on the left of
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14 D e f e n d a n t s 1713, what is the forced vital c a p a c i t y and would j
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15 you comment on whether in your opinion it is normal or
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16 abnormal? 17 A. Well, on this occasion, the v a l u e is 2.13 liters 18 which is distinctly reduced in c omparison with the expected
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19 value in the second column of 3.08. So that there is only 69 i i
20 percent of what would be expected for the vital capacity on
21 this particular occasion.
22 Q. Is this reduced, then, f r o m the one d o n e just a few
23 weeks earlier? 24 A. Significantly, yes, sir.
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1 Q. And if the jury has that -- and that forced vital
I 2 . 8 7 ,2 capacity think you told us was
is that correct?
3 A. Yes, sir.
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4 Q. 5 sir?
Now, Doctor, attached to Defendant's 1713 is what,
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6 A. The second page is a reproduction of the 7 spirograph, that is the tracing recorded by pen on paper at
8 the time the patient does the breathing maneuver and this
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9 generally accompanies these efforts so that you can visualize 10 the manner in which the test was performed and that is what
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11 is shown on this attached piece of paper.
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12 Q. All right. We have a b l o w u p of that tracing that I !
13 would like to exhibit to the jury, Doctor, and let me see if 14 I can't find it. Just by way of quick review, we talked
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15 about this tracing. This is Defendant's 1663 you identified 16 earlier in your testimony and does it not show where this 17 piece of paper is where the tracing is done when the
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18 spirometry exam is done? Just come down and show that to the
19 jury again if you would quickly?
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A. The paper is applied to this circ u l a r d r u m and it
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21 rotates. The pen here inscribes the lines. The lines result
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22 from the movement of this container which reflects the volume `
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23 of air that is blown into it and the speed with which the air
24 moves into this container.
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1 Q. Okay. Now, this tracing, then, for Dorothy
2 Jennings on this occasion in December of '81, I would like to
3 have this marked as 1713A. Doctor, I have now placed on the
4 easel what has been marked as 1713A and can you identify that
5 as a b l owup of the tracing that is attached to 1713?
6 A. Yes. It is identical.
7 Q. Do I have it right side up? I guess I do.
8 A. Yes.
9 Q. Doctor, can you tell us whether there is anything
10 in connection with this actual tracing and in c o n n ec t i o n with
11 the FVC that in any way explains the difference betw e e n the
12 FVC that was done just a couple weeks earlier and this one
13 that is now reduced?
14 A. Yes. I think the explanation is c l e arly apparent
15 from an inspection of these records. There are a total of 16 one, two, three, four, six separate individual e x piratory
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17 efforts recorded here on this same piece of paper. One, two, !
18 three, four, five, six. The speed with which the dr u m
19 rotates is generally set such that these vertical lines 20 represent one second time intervals. This, parti c u l a r
21 effort, for example, represents a one, two, three, four, five 22 and a fraction second sustained blow. 23 Q. And for that you are talking about the b o t t o m line
< ii 1 A. That is on the b o t t o m line. The rate at which the i\|i 2 line rises early in the expiratory maneuver is indicative of
3 how fast the air is moving from the patient into the 4 recording device and when the slope is rather slow and
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5 prolonged, then the expiratory effort is sort of dragged out 6 and not coordinated and done in a rapid proper fashion and
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7 you can see that the onset in all six efforts shows marked 8 variation. Look here. This one, the air just barely
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9 trickles out, whereas here it seems to come out much more 10 rapidly.
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11 Q. You indicate that the vertical lines represent a
12 second?
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13 A. Correct.
14 Q. I take it, then, that another part of this graph -
15 represents the volume?
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[ 16 A. - The ver t i c a l -- the horizontal -- begin again. The .i
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17 vertical lines represent time. The horizontal lines
18 represent volume and the volume values are indicated on this
19 scale here.
20 Q. On the right side there, is that correct, starting
21 down at the bottom?
22 A. Y e s Each.
23 Q. 100 going on? 24 A. Each vert i c a l lines is 200 millimeters. This
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1 represents one liter. A thousand milliliters. I
2 Q . So what does this show just so this might help pull j
3 this together by way of example, what does this show with the j
4 difference, if any, on the six different blows between how
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5 much air she was expiring in the first second?
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6 A. Well, that would be highly variable b e c ause of the !i
7 inconsistent performance as visualized from the onset of 8 these six efforts. The beginnings are all different.
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9 Q. Right.
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A. So that the initial part of this effort w h i c h was
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11 then sustained for another four or five or six seconds, the
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13 beginning can be expe c t e d to have considerable variation. In I 14 addition, the terminal or the end part of these efforts are ;
15 quite different and you can see on at least three or four of
16 them that the expiratory effort was terminated while air was
17 still moving from the pati e n t into the recording device. So j
18 that we would expect all six of these'to have somewhat
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19 different volume measurements since the volume was still 20 increasing when the p a t i e n t d e c i d e d to quit. 21 Q. What is the p a t i e n t told in c o nnection w i t h this 22 about when they should quit?
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23 A. If the test is p r o p e r l y done, the t e c h n i c i a n
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24 continuously urges the patient on to maximum sustained and
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X continued effort until the technician observes no further
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2 increment in volume and then says okay, b r e athe in.
3 Q. Nov/, what. Doctor, then is the s i g n i f i c a n c e of
4 these various volumes and flow rates and quitting while air 5 is still coming out, if any, in connection with utilizing 6 this spirometry for any diagnostic purpose? 7 A. Well, it casts c o n s i d e r a b l e doubt on the v a lidity 8 of the reported measurement. Lung function tests of this 9 type presume that the numbers reported are the true maximum
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10 that the patient is capable of delivering. The vital
11 capacity is defined as the maxi m u m amount of air. If the
12 effort that was expended or that the patient exerted when the
13 test was done no longer represents their maximum, then, of
14 course, the value can't be used as being very meaningful or 15 have much clinical significance.
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16 Q. Doctor, w i t h regard to the forced vital capacity, i
17 then, that was found two or three weeks later to be different
18 than the one done earlier and given this tracing, can you
19 comment on whether the forced vital capacity in your opinion
20 reflected in this sp i r o m e t r y done in December of '81 in fact
21 in your opinion represents her true forced vital capacity?
22 A. It clearly does not.
23 Q. And w h y so?
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24 A. Because of the ap p e a r a n c e of the graphs as we have iii
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1 just discussed and the fact that the value differs so
2 dramatically from one performed just a short time before.
3 Q. Now, Doctor, when you were here before, the terra
4 effort dependence was used in connection with these tests.
5 The spirometry, this blowing into this machine. Is this an
6 example of what you mean by a test being effort dependent?
7 A. This is a very clear-cut example. The m o s t effort
8 dependent part of all of these breathing tests is the initial
9 portion of the forced vital capacity maneuver. The most 10 effort dependent, what requires the greatest subject work 11 cooperation is the part that comes out early on in the vital 12 capacity maneuver. Unless they really fill their lungs up
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13 and then they really blow out hard, this initial part tends
14 to be, to vary between successive efforts which is exactly
15 what has happened here. On the other hand, the event that
16 occurs w hen the lungs are n e a r l y empty is m u c h less effort
17 dependent. 18 Q. That was going to be my next question.
We have
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19 talked then about the FVC but you will remember that back in
20 November of '81, the few weeks earlier, we not o n l y had a
21 normal FVC but you told us an abnormal FEF75%, that is the
22 flow rate?
23 A. Correct.
24 Q. What about the FEF75% in c o n n e c t i o n w i t h this
20
1 December of '81 spirometry? First of all, in looking at it, 2 if you have it there, Doctor, how did it compare with what
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3 was done in November, some three weeks earlier or so, and 4 after comparing it, tell us whether in your o p i n i o n it is 5 normal or abnormal?
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6 A. Well, it is clearly abnormal. It is somewhat lower
7 than was previously observed. Because the event which occurs i
8 when the lungs are relatively empty are much less effort 9 dependent, the distinction and the differences are not so 10 marked. Now the values are different but both values are
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11 clearly abnormal. 12 Q. All right. So, the FEF75% p o r tion of this test, I 13 don't know how else to phrase that, is not as effort
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14 dependent as the forced vital capacity?
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A. Or event occurring at the beginning of the vital
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16 capacity.
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17 Q. Okay. All right. So, with reference to the FEF75%
18 finding on this December of '81 spirometry and t aking into
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19 account the November of '81 spirometry, can you rely m o r e on \
20 the 75 percent than you can on the FVC finding?
21 A. Well, I think I would say that the F EF75% is
22 grossly abnormal on both occasions. How reliable the
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23 individual specific values might be is difficult to judge
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24 because the 75 percent number tends to vary but in both cases
21
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1 they are so far from the predicted value that there is no 2 question about their interpretation. 3 Q. Okay. But as to the December of *81 being her true 4 FEF75%, that would be questionable? 5 A* Y e s 6 Q. All right. Now, moving then on to the next 7 spirometry in order of date, we come to the one done in the 8 Carnow 1 exam in August of 1982 and I want to have that 9 marked and have you comment on that, Doctor. 10 HR. MUSGRAVE: Your Honor, Hr. Carr is not going to 11 have any objection. I am just going to pass this to try and 12 move things along if that is all right. 13 THE COURT: Sure. 14 (Defendant's Exhibit 1714 is passed to the jury). 15 Q. Doctor Cugell, you n o w have in front of you 16 Defendant's 1714 which is the spirometry done in connection 17 w ith Doctor Carnow's exam in August of *82, is it not, sir? 18 A. Yes, sir. 19 Q. Now, let's first look at the FVC if we could. W hat 20 is it and compare it, if you would, to the two other FVCs 21 that we have looked at in November of *81 and in D e c e m b e r of 22 *81? 23 A. Well, the observed value at this time was 2.41 24 wh i c h is c o n s iderably closer to the November of *81 result
22
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1 than to the December value and as reported 83 percent o the 2 predicted and that is well within the range of normal. 3 Q. All right, sir. And what about the FEF75% in this
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4 case? 5 A.
t Well, that 1.55 is kind of intermediate between the
6 two prior values. It again is woefully abnormal and well 7 below the predicted value as shown.
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8 Q. All right. Now, taking into c o n s i d e r a t i on this 9 spirometry, then, that was done approximately 8 months after 10 the December spirometry, the one that you indicated was a 11 poor effort, does this in any way affect your opinion about 12 the December spirometry, FVC, that you felt was a poor
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13 effort?
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14 A. Well, in the absence of any serious illness that
15 could have accounted for the poor effort previously
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16 discussed, it would seem to further support my interpretation j
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17 since, with better effort, presumably she gets better
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18 results.
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19 Q. Does it support your opinion that the December of
20 *81 FVC reading was as a result of a poor effort and not as a
21 result of any abnormality with her lungs?
22 A. Absolutely.
23 Q. Now, you made a comment that in the absence of any
24 evidence of problems, lung problems at the time of that
23
1 December of *81 spirometry, that that would be your opinion, 2 What did you mean by that?
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3 A. Well, a drama t i c d e c l i n e in vital capac i t y can j
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4 occur in the presence of a variety of lung diseases,
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5 injuries, infections. There is nothing specific about a loss j
6 of vital capacity but if it is of the -- a loss within a
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7 short time of the magnitude reported here, that is from 2.87 8 on November 9, 1981, to 2,13 on Dece m b e r 14, 1981, for that
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i 9 to occur, there would have had to be something calamitous and |
10 something catastrophic happened and it didn't, and
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11 furthermore, the s u bsequent r e latively normal value would as 12 we have just said make it quite clear that the low values in 13 December were the result of poor effort.
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14 Q. All right. If I understand, Doctor, for the forced '
15 vital capacity to drop dramati c a l l y in three weeks, if you
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16 were to take the values b e t w e e n November and Dece m b e r of '81 17 as reported and accept them as true, you would expect some 18 serious lung dysfunction manifesting itself with clinical
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19 symptoms that would be readily observable and found?
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20 A. Yes.
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21 Q. And what type of symptoms would you expect a p e r s o n j
22 to have with that serious drop in FVC in the short period of
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23 time?
24 A. Oh, they could be of any type. They might result
24
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1 because she had a fractured ribp severe pneumonia, fluid 2 collection in the chest. Almost any serious pulmonary
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3 problem could producethat much of adecline but emphasis
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4 would have to beserious andsignificant. 5 Q. Doctor, I have here M o n s a n t o ' s Exhibit 624 whi c h
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6 has been previously identified in this case and these are the 7 medical records of Dorothy Jennings, copies of some of which 8 you have already seen here, and deal with the comments with
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9 the doctors about what she was complaining about, if '
10 anything, when these spirometries were done in November of
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i 11 '81 and December of '81 and I w ould like to show these to you t
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j12 and turning to page 2 of that exhibit, Mr. Carr, and starting
13 at November 9, 1981, would you r eview the records as to what
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14 was reported, if anything, in November of '81 and December of !
15 *81 when the spirometry was done, b o t h of these were done at 16 Boone Clinic, and advise us as to what complaints, if any, 17 she had associated with her lungs and if you would also
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18 advise us as to whether those complaints are in accord with a !
19 marked drop in PVC in this three week period? 20 A. Well, this is page two. T h e r e are three entries. 21 The first one dated November 9, 1981, says, "Was referred by
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22 fir. Seigfreid for evaluation of expos u r e to the Sturgeon
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23 spill". 24 Q. That is November 9, right?
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1 A. That is correct.
2 Q. And that is just a couple days before this, Well
3 that is the day of the first spirometry? 4 A. That is correct. 5 Q. Any recordation there of an y c o m p l a i n t s ? 6 A. None at all. The next entry is d a t e d Nov e m b e r 30, 7 1981, and says "Exposed to the Sturgeon spill. She stated 8 she lives two blocks from the spill site. Following the
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9 spill she had flu-like symptoms with malaise, fatigue and
10 shortness of breath associated w ith non produ c t i v e cough. It
11 went on to a period of time until she moved to Memphis, 12 Missouri, where her symptoms abated over the next week to 10
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13 days. She complains of shortness of breath, marked fatigue. ! 14 Pulmonary function studies are pending. She will return here '
15 in two weeks for follow up".
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16 Q. Anything else in D e c e m b e r ? 17 A. And the final entry dated December 14, 1981, says 18 "Mrs. Jennings* pulmonary function studies continue
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19 abnormal. She will see me after the first of the year".
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j20 Q. Now, is there anything in those records w i t h regard
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21 to complaints that she had that would support findings that
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22 her forced vital capacity in fact dropped d r a m a t i c a l l y as it 23 did as opposed to being just a poor effort when she was in
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24 there?
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I 1 A. There is nothing there to account for that change* j
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2 Q. And would that support your opinion that this
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3 Decemberof *81 spirometry was a
poor effort?I
4 A. Yes, it does*
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5 Q. How about the FEF75% on the A u g u s t of *82? Going
6 back now to Doctor Carnow's first exam in August of *82, you
7 told us about the FVC- What about the FEF75%?
8 A* Well, that has been clearly abnormal on all three 9 of the tests that we havediscussed.
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10 Q* And is it abnormal on this one?
11 A.
Yes*
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12 Q. And is it more in accord with the November FEF75% 13 or the December FEF75% in "81 as far as volume?
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14 A. Kind of in the middle.
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15
Q. All right.. I would like to m o v e on to the next
16 spirometry, Doctor Cugell, which would be that done in
17 connection with the examination done by the Northwestern 18 doctors on October 25, 1983, approximately a year later and
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19 let me have that marked first. You now have in front of you,
20 do you not, Doctor Cugell, Defendant's 1715 being the 21 spirometry done on Dorothy Jennings October 25, 1983, in 22 connection with the Northwestern exam of D o r othy Jennings?
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23 A. Yes.
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24 MR. MUSGRAVE: I offer it into evidence and request j
27
1 permission to pass copies, Your Honor.
2 MR. CARR: No objection.
3 THE COURT: Admitted without objection.
4 (Defendant's Exhibit 1715 is passed to the jury).
5 Q. Tell us about the FVC, Doctor, as found in October
6 of 1983?
7 A. It is cl e arly normal. It is better than o bserved
8 on any of the tests discussed so far.
9 Q. And what about the FEF75% rate finding there? How
10 does that c o m pare w ith prior exams? 11 A. It continues to be quite abnormal and again it is 12 the same level of p erformance as previously observed. 13 Q. Doctor Cugell, I am now handing you D e f e ndant's
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14 1716 which is the spirometry done then in the Carnow two exam j
15 in November of 1983 and I would offer that into evidence.
16 Your Honor, and request permission to pass copies to the jury |
17 of that.
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18 MR. CARR: No objection.
19 THE COURT: Admitted without objection.
20 (Defendant's Exhibit 1716 is passed to the jury).
ii 21 Q. This would then be approximately a month later than j
22 the N o r t h w e s t e r n exam?
23 A. Yes, sir.
24 Q. And tell us, if you would, Doctor Cugell, with
28
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1 regard first to the FVC, the forced vital capacity, how does 2 it compare with the others that we have seen here now? I 3 guess we are on our fourth one here, are we not? This would 4 be five?
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5 A, Five,
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6 Q. All right,
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7 A. Well, the forced vital capacity on this occasion is ! i
8 essentially the same as observed in October of *83, perfectly
9 normal.
yt 10 Q. And how about the FEF75%, the portion of the test
11 dealing with rate and flow at theend? 12 A. Well, again, that is grossly reduced and in the
13 general same range of values as previously observed. The 14 actual numbers look a bitdifferentbut these, this
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15 particular measurement is subject to considerable variability j
16 and so I can best categorize this as saying it is grossly
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17 reduced and in the same range as all of the other
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18 measurements of the forced expiratory-flow at 75 percent.
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19 Q. Doctor Cugell, you n o w have another s p i r o m e t r y that '
20 I have had m a r k e d as Defendant's 1717 done March 24, 1985, on
21 Doro t h y Jennings?
22 A. Yes.
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23 Q. And could you tell us what the FVC is on that? i
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A. The particular result of 2.93 is very similar to
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1 the values previously reported, both by Doctor Carnow and
2 during the Northwestern examination.
3 Q. And is it n ormal or abnormal? 4 A. Oh, it is completely normal. 5 Q. How does it c o m pare with the other FVCs that we
6 saw, going back to 1981?
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7 A. Well, with the exception of the values obtained in j
8 December of 1981, those are the values that were the subject
9 of our discussion with the display chart here. They are all
10 e s s e n t i a l l y the same.
11
Q. All right.A n d the FEF75%, the
flow rate atthe
12 end of the expir a t i o n w ith regard to this March of *85
13 spirometry, how is thatinterpreted,Doctor?
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14 A. Again, the 1985 result is a little better than was
15 observed on some of the previous tests but once again it is j
16 very grossly reduced from expected andwoefully abnormal.
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17 Q. All right. So we no w have gone through six
18 spirometries, is that right, Doctor?
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19 A. Y e s , s i r .
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Q. And to try andsummarize these with regard to the
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21 two areas we have been talking about, I have some charts that j i
22 I have prepared.
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23 Doctor Cugell, first of all, I have had the 24 reporter now mark at Defendant's 1718 a recapitulation, if
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1 you will/ a summary with regard to the forced vital capacity 2 on these six spirometries. Would you come forward and tell
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3 us, number one, have I accurately represented the numbers of 1
4 these six spirometries that you have just discussed and then
5 with the numbers, if they are accurate here so you can see
6 them all in one place clearly, comment, if you could, on the
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7 significance overall, then, of these six spirometries that we
8 have seen in connection with the forced vital capacity?
9 A. The numbers in this m iddle c o l u m n w h i c h were
10 obtained on the dates shown on the left-hand colu m n are taken ;
11 from the top line of all of the reports that we have just
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12 reviewed. The final column represent the perc e n t of the
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13 expected result on each occasion when these tests were done
14 and it is quite apparent from this c o m p i l a t i o n that these
15 numbers are all well within the expected range of normal with !
16 the exception of the results obtained on December. 14, 1981,
17 and that is the set of tests w h i c h we have di s c u s s e d and the
18 set of spirograms shown on Exhibit 1713A. The tabulation in
19 this manner re-enforces the previous statement that this must
20 indeed represent poor effort s i n c e there would be no other
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21 way to account for a normal value a month before or three
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22 weeks before this or five weeks before and the normal value 8 i
23 months later.
24 Q. Now, Doctor, w i t h regard to this 1718, then, the
31
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1 FVC value that I am go^rtg to c ircle in red of D e c e m b e r 14th
2 of *81 is inaccurate"''in your opinion?
3 A. Correct* 4 Q. Now, on D o r othy J e n n i n g s 1 dot charts w i t h regard to 5 forced vital capacity, Doctor Carnow agrees apparently with
6 you* He has no dots for forced vital capacity on any of
7 these spirometries except one, that being 12-14-81. Do you 8 agree or disagree with this finding in that regard?
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9 A. Well, I have got to disagree. I can o n l y assume
10 that had he the benefit of the same sequence of results as we
11 did, that he would have made a different conclusion.
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i12 Q. Well, do you know w h e ther or not he had these Boone j
13 County records or not? 14 A. I don't know.
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j15 Q. Do you know whether he char g e d these p e ople for
16 reviewing their records when he did these exams? 17 A. I don't know. 18 Q. But if he had reviewed these records, if any
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19 competent doctor in pulmonary had reviewed these records, in j
20 your opinion would he have reached the same c o n c l u s i o n 21 looking at those tracings? 22 A. I see no alternative. No way he could c onclude
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23 otherwise.
24 Q. Now, I have had marked -- and, this, then, we have
32
1 talked about the PVC dot that appears on the Carnow charts. 2 Let's move then to the FEF75%. There was two categories and
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3 this is the second of them we have gone through and I n ow
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4 have in front of you Defendant's 1719 w h i c h is a chart, is it
5 not, that just summarizes the FEF75% actual findings on these 6 six spirometries and shows also the predicted for those 7 findings?
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8 A. Yes, sir.
9 Q. And this is -- Now, again, if y o u w o u l d c o m ment in j
10 conn e c t i o n w ith what you have told us earlier n o w with all of >
11 these here so you can see them, the signi f i c a n c e of any of
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12 all in reviewing all six of these s p irometries in c o n n e c t i o n
13 with the FEF75% area?
14 A. Well, this shows two very distinctive findings.
15 Number.one, all of these values for the forced expiratory
16 flow at a point when 75 percent of the vital capacity has
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17 been expired, that is what the symbols stand for, the 18 reported values are all very low. Now, there are
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19 considerable variation in these reported values but every one
20 of them is very low. And you can see that w h e n the reported !
21 value is related to a predicted perf o r m a n c e for that patient, 22 that the percentage performance, percent of predicted, is
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23 again not 70 percent or 80 percent or borderline, it is 24 grossly reduced. It goes from a low of 24 p e r cent to 44
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1 percent. There is no disagreement. There is no a m b i g u i t y
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2 There is no uncertainty. These are all bad. 3 Q. Okay. Now, you mentioned that there was a great
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4 variation in the FEF75% test? 5 A. Yes, sir.
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6 Q. Does that var i a t i o n that can occur in c o n n e c t i o n 7 with that portion of the test affect your opinion that these 8 are bad? 9 A. These are so badthat var i a t i o n would have no 10 bearingon m y interpretation. 11 Q. If they were higher up and closer to normal, then 12 variation might become a p r o b l e m or concern in i n t erpreting? 13 A. Correct. 14 Q. But not here?
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15 A. C o r r e c t .
16 Q. So, Doctor C arnow does have dots for, X b e l i e v e -- 17 let me just check here. He has four FEF75% dots which would 18 be for these first, well for C arnow 1 `and Carnow 2 and I 19 believe the Northwestern and the one outside Boone County.
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20 And you would agree that that 75 percent finding is an
21 abnormal result? 22 A. Absolutely.
23 Q. Now, you can take your set then, Doctor. V7hat, if
24 anything, does the -- well, strike that. I think you had
34
1 mentioned earlier that the FEF75% test tells you something 2 about the small airways?
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3 A* Correct,
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4 Q. And what does it tell you and what, in your
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5 opinion, does it tell you in connection with Dorothy Jennings j 6 given these six spirometries that you have reviewed?
7 A. Well, in c o n j u n c t i o n w i t h the fact that her vital
8 capacities are normal and her other measures made when the
9 lungs are fully inflated are normal, these measures made when
10 the lungs are n e ar l y empty being so gros s l y abnormal 11 signifies diseases limited to the small airways, as the term
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12 we customarily employ. So that this definitely shows a
5
13 consistent pattern of abnormalities in the small airways, 14 Q. Doctor, what ca n cause small airway obstruction? 15 A, The most common, most frequent and basis for this 16 finding is long history of cigarette smoking. It can also
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17 occur as a result of infections and bronchitis and flu,
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18 Q. All right. Doctor, I w o u l d * l i k e to now ask you to. '
19 assume some facts and this first part of the facts that I am 20 going to ask you to assume are from the trial testimony of
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21 Dorothy Jennings and also from some records. Doctor, handing
22 you what has been previously marked in this case as
23 Defendant's 628, these are medical records pertaining to
24 Dorothy Jennings from, I believe, the Kirksville, no.
35
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1 Kirksville Osteopathic Hospital back in 1959 and you have
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2 previously reviewed these, have you not?
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3 A. Yes-
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4 Q- And in an i n v e n t o r y of her systems and h i s tory that j
5 was taken at that time, I am referring you to page 7 of the
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6 exhibit, is there anything said there about her smoking 7 history at this time which is January of 1959? 8 A. Yes. The m i d d l e of the page under habits, tobacco, 9 one and a half packs cigarettes per day10 Q. All right, sir. Thank you. Now, let me hand you 11 what has been m a rk e d as D e f e n d a n t ' s 624- These I think you
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12 just looked at earlier in connection with Dorothy Jennings, I
13 want to refer you to a record of Febr u a r y 7, 1984, where she 14 gave a history at that time in connection with her social
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15 habits, it is page Ul of D e f e n d a n t ' s 624, and if yo u would
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16 look at that, sir, andunder social history, is there any
17 reference to her c i g a r e t t e smoking history?
18 A. It says quote she smokes one and a half packs of
19 cigarettes per d a y and has done so since she was 18 or 19
20 years old.
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21 Q. Is that c o n s i s t e n t with the history that she gave
22 back in 1959 at the Kirksville Osteopathic Hospital?
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23 A. Yes.
24 Q. I would like you also then, Doctor, to a ssume that
36
*. 1 at trial Dorothy Jennings testified -- this was October of
2 1984, she was 58 years old at that time and at the time of
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3 trial, she said she was smoking only half a pack of
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4 cigarettes a day and I believe the 5 February of *84, is that right? 6 A. February 7th of '84*
record you just saw was
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7 Q. This is October of *84. At that time she testified
8 she was only smoking half a pack a day but there were still 9 times currently when she smoked a pack a day and there have
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10 been occasions or periods when she smoked one and a half
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11 packs a day* She was 58 years old at the time of trial and
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12 that she had started smoking somewhere when she was around 20 1
13 years old, most of her adult life. Now, Doctor, taking those '
14 facts into consideration and the statements in those medical 15 records, do you have an opinion as to the cause of Dorothy 16 Jennings* small .airway obstruction as indicated by the
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17 results of these spirometry tests on the FEF75% portion 18 thereof? 19 A. Yes, I do.
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20 Q. And what is that opinion, Doctor?
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21 A. This lady has more than adequate h i s tory of
i 22 cigarette use, irrespective of whether we compute it from the j
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23 1959 records or her testimony at the trial to more than
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24 explain the considerable degree of small air flow obstruction !
37
1 and small airway disease that the tests show that she has.
2 She has from 35 to 40 pack years of cumulative cigarette 3 exposure and that is in a p e r s o n who responds a d v e r s e l y to
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4 the effects of cigarette use, m o r e than e n o u g h to p r o d u c e the ,!
5 degree of small airway abnormalities that the test show she
6 has.
7 Q. Now, those small airways, Doctor, you had a chart, 1
8 I believe, that we looked at earlier, actually a couple, and 9 just to briefly refresh the jury's memory about where those 10 are, you will recall we had looked at D e f e n d a n t ' s 1661 w h i c h 11 showed the bronchial tree coming down to not the small 12 airways but down into an area where they are getting smaller 13 and smaller, and those small airways are not referenced on 14 this particular exhibit, are they? 15 A. No, they are not.
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16 Q. And then we looked at D e f e ndant's 1662 -and are the
17 small airways shown on here, then? 18 A. They are demonstrated in a d i a g r a m a t i c f a s h i o n and 19 they begin down here at about the 12 to 14 to 16 generation
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o j. s u ccessive divisions.
The airway is like an inverted tree
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21 trunk w ith successive branches and after 14, 12 to 16
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22 successive generations of branching, we get the airways of
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23 this size that are generally considered to be in the so-
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24 called small category. By common consent, those are about
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1 two m i l limeters in diameter or so. So they are somewhere in 2 here. This is three and a half millimeters. .06 3 millimeters, three and a half millimeters, .6 millime t e r s .
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' 4 So they are somewhere in here. 5 Q. Now, Doctor, the small airways, are there m o r e of
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6 those than there are of any other of the airways in the
7 lungs, the larger airways and the medium size airways and
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8 what have you? 9 A. Oh, yes, a great deal many more.
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Q. Nov;, and just how is it, if you k n o w or can tell
11 us, what is the physiology? How does cigarette smoking
12 affect these small airways? What does it do to them?
13 A. Well, examination of lung tissue obta i n e d f rom
14 healthy smokers who succumbed in accidents or who had to have
15 surgery for whatever reason, the lung tissue has been studied
16 extensively and the appearance of the small airways 17 c o r r e l a t e d 1with the information about their smoking and it
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18 has been quite clearly shown that an effect that accounts for !
19 the abnormal tests we have just discussed is an i n f l a m m a t i o n :
20 in the lining membranes of these small airways. It narrows
21 them and it is patchy and irregular and what you can see
22 under the microscope in these small conducting tubes 23 correlates very well with the test results measured in that 24 patient at another time.
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1 Q. Well# do all p e o p l e that smoke have -- if they
2 smoke over a period of time# this is based upon your
3 knowledge, experience# training# reading, your expert
4 opinion# do all people that smoke or would smoke as much as 5 Dorothy Jennings is reported to have smoked# 30 years# a pack
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6 and a half a day# whatever# will they have damage to their or
7 some of their small airways? 8 A. Well# not everyone. Some p eople are f o r tunate 9 enough to have an inherent resistance to the adverse effects
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10 of cigarette smoke and so the d e g r e e of a b n o rmality is highly j
! 11 variable and in sensative people it can be severe and extreme t
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12 and after 30 or 40 pack years of smoking# they may have 13 totally disabling if not fatal emphysema and bronchitis.
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14 Other people with the same history of cigarette exposure may
15 tolerate cigarette smoke and, therefore# not have any severe 16 degree of disease# but few people will be able to tolerate 17 this much cigarette exposure without some measurable
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18 abnormalities
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19 Q. D o r o t h y Jenn i n g s also told us# Doctor, w h e n she
20 testified that at least as far as she was co n c e r n e d that she 1j
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21 had allergies before the spill and that she felt that she was j
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22 allergic to anything w i t h a d i s infectant in it. Weeds --
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23 also weeds# dust# molds and soaps and detergents. Would
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24 that, if in fact that was true# if that is what she stated
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40
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1 and believed and in fact that was true, would that 2 information be of any benefit to you in connecting this 3 cigarette smoking and the small airway obstruction that you
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4 have seen here? 5 A. Well, a h i s t o r y of recurrent r e s p i r a t o r y symptoms
' II
6 of that type suggesting an allergies and asthma are also 7 associated with some abnor m a l i t i es in the small airways. It
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8 implies that she does have a sensitive tracheal bronchial 9 tree and such people are more likely to develop difficulties 10 as a result of lon g - t e r m cig a r e t t e use than p eople w i t hout
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11 that background.
12 Q. Now, when D o ctor C a r n o w was cross examined in
1
13 connection with Dorothy Jennings about her smoking, he did
14 state in cross examination that if she had been smoking an
15 average of a pack a day since she was 20 years old, that then
16 these dots that he had on her chart for the FEF75% d idn't
'
17 belong there. He said that on cross examination. Would you 18* agree with that? 19 A. Well, I thought the dots m e r e l y meant that an
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20 abnormality was present. T h e y are abnormal.
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21 Q. They are abnormal but what he meant was and, thank
22 you. You have straigh t e n e d me out on that. He said that if
23 she had been smoking a pack a day for 20 years, then the dots 1 I
24 don't belong there because her abnormal FEF75% is clearly
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41
1 associated with her cigarette smoking?
2 A, O h , I concur w i t h that fully. 3 Q. All right. But on cross e x a m i n a t i o n he also said, 4 Doctor Cugell, that if she had only smoked a half a pack a 5 day since she was 17 or 18 which is what she told Doctor
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6 Carnow or at least what was reportedly written down by Doctor
1 7 Carnow when he saw her in August of *82 irrespective of what
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8 she told those other doctors in those reports, that if in
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9 fact that was true, then he would say that the small airway 10 obstruction was not as a result of cigarette smoking. Again
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11 a half a pack a day since she was 17 or 18. Would you agree !
12 or disagree with that? 13 A. I think that is e n t i r e l y s p e c u l a t i v e on his part.
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14 Q. ' Can cigarette smoking of half a pack a d a y for a 57 j
15 year old woman who started w hen she was 17 or 18, can that , ii!
16 cause small airway obstruction such as exhibited by these
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17 spirometries?
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i 18 A. I think it is very likely, p a r t i c u l a r l y in a p erson :
19 with a background of allergies and questionable asthma that 20 she has reported.
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21 Q. Doctor, you see a lot of people that have histories
22 of smoking and currently smoking when you are examining them?
23 A. Yes.
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24
Q. And is there any wa y you can comment upon the --
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42
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1 well, strike that. Doctor, as I told you at the outset# we 2 had three areas that Doctor Carnow had put dots on these 3 charts. We have talked about two of them. The last one is 4 M W . Now, I know we talked about this before. It has been 5 awhile. The M W portion of the test or the M W test of the 6 six spirometries that I have given you, do any of those
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7 reflect the M W test?
8 A. Only one. 9 Q. And that is which?
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10 A. That is the Northwestern test done on O c t ober 25,
11 1983. 12 Q.
All right. So that would be Defendant's 1715?
i =
13 A. C o r r e c t .
14 Q. Nov/, the M W is what type of test and if you could |
15 relate it to and d i s t i n g u i s h it if it is d i s t i n g u i s h a b l e f r o m ;
16 the spirometries that we have been talking a b o u t t the blows
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17 and the measurements that are connected with that forced
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18 vital capacity and the various rates and so on?
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19
A. The M W , and that stands for maximal v o l u n t a r y
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20 ventilation, is another alternative measure of how well, how 1
21 rapidly air can be moved from, in and out Of the patient's
22 lungs. Unlike the single forced expiratory efforts that we
23 have discussed, the M W is a repetitive procedure and it
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24 depends upon the patient performing rapid breathing maneuvers j
43
1 for a sustained period of time. In the case of this
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2 particular test as noted on the report, as noted on Exhibit
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3 1715, it was conducted for a period of 10 seconds. It is
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4 done like this (indicating). The patient is informed what to j ii
5 do. They hold a mouth piece or a device in their mouth so
6 the air that they breathe can be measured and the technician,
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7 whoever is administering the test, tells them to start and
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8 they start breathing in a pattern that represents the optimum j
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9 combination of speed and depth of breathing like this
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10 (indicating) .
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11 Q. And they do that for 10 seconds? i
12 A. And they do that for 10 seconds and the amount of j
13 air that cornes out of the patient over that whole p eriod of
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14 time is collected and measured and the volume that is
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15 reported is multiplied by the appropriate interval so that if
16 the test had been continued for a full minute, they would
17 have, she w o uld have brea t h e d as noted here 70 liters of air 18 w hich is a substantial bagful of air.'
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19 Q. Is a dif f e r e n t piece of equipment used than what is j
20 used in the spirometry? 21 A. No. A modern, light weight, technically suitable
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22 spirometers are satisfactory for making this measurement.
23 Q. But it is a separate test done at a separate time?
24 A. A separa t e test at a separate time and it is
44
1 dependent -- the results are dependent upon some of the same 2 things that influence the forced vital capacity that we 3 previously discussed.
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4 Q. S o r is it an effort dependent test also?
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5 A. It is very highly effort dependent.
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6 Q. Now* Doctor, w i t h reference to, then, D e f e ndant's |
7 1715, what was her M W test and explain that to us the
8 results that you found there? 9 A. Well, over the 10 second time interval, e n o u g h air 10 was moved so that with the appropriate calculations, the
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11 answer was 70, or 70 liters in a minute. For a woman of her 12 age and her height and her age, the expected result is 93.
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13 So, the performance is 75 percent of predicted and that 75
14 percent in the last column is the result of dividing 70 by 15 93.
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16 Q. And is there a range that is considered normal when j
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17 you interpret thesetests.Doctor?
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18 A. A conv e n t i o n a l guide posts that normals include 80 1
19 to 100 p e r c e n t of predicted,
20 Q, So, looking solely then at the results of this M W j
21 test, would this be a little low, you might say?
22 A. C o r r e c t .
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23 Q. Now, Doctor, do you believe or do you have an 24 opinion as to whether her M W is in fact abnormal?
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'. 1 A. Well, there are several bits of information that
2 are really missing here in order to make that determination.
3 For example/ we d o n 't know how m a n y times the test was done.
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4 If this truly represents the best of several efforts. We
5 d o n 't have a graphic record to see ho w consistent the
6 breathing pattern was. But we do have the ability to relate i.
7 the results of this test with the other tests that she did.
8 Now, there is a very convenient --
9 Q. W ould this be in the form of some kind of a cross
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10 check? 11 A.
Well, exactly. It is commonplace before making an
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12 interpretation of any lung function test result to look at
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13 the pattern, look at the performance of the other tests, look
14 at the other measurements to see if the value you are going
15 to report is consistent with what other results the patient 16 has done. 17 Q. And how would you do that in c o nnection w i t h the
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18 M W then?
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19 A. Well, there is a very c o nvenient and standard w a y 20 that this is done. Since the M W and the FEV-1, the forced
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21 expiratory volume in one second, measure essentially the same I
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22 thing. There should be clear agreement between those two.
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23
Q. All right. Now let me just be sure I u n derstand
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24 that. The FEV-1 on Defendant's 1715 is the third reading
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46
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1 down, is that right? 2 A. It is the third line, yes* 3 Q. And there is some correlation that should check out 4 between that >FEV-1 finding on the spirometry and the separate 5 M W test? 6 A. That is correct. 7 Q. And why s hould those -- ho w are those tests
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8 similar? 9 A. Well, they are closely linked because they measure
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10 the same breathing function. The ability to move air fast
11 and the conventional c o r r e s p o n d e n c e b e t w e e n the two is 12 obtained by multiplying the results of the FEV-1 b y 40 and
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13 that should give you a number equivalent to the M W . 14 Q. All right. Now, the FEV-1 we have t a lked about,
15 FEF75% and the forced vital capacity, tell us just by way of 16 refreshing our memories what the FEV-1 is? What does that 17 measure? 18 A. That measures the amount of-air that comes out in
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19 the first second of this forced e x p i r a t o r y m a n e u v e r that I
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20 did before. You take a big b r e a t h in and you b l o w it all out !
21 and the first second of that prolonged expiratory effort, how 22 much comes out in the first second of that expiratory effort
23 is the FEV-1. 24 Q. So it is a m e a s u r e m e n t of v olume in the first
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1 second, if you will? 2 A. And if you relate volume to time, then yo u have a 3 measure of velocity or flow rate.
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4
Q. So, by multiplying the v o lume in one s e c o n d found
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*\ 5 in the test above there, that is the FEV-1, you multiply that j
6 by some number that correlates, you ought to have a 7 reflection of v/hat the M W should be?
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8 A. Correct.
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9 Q. And how did that check out in co n n e c t i o n w i t h 10 Dorothy Jennings when you did that in reviewing this 11 spirometry. Defendant's 1715?
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12
A. Well, if you mult i p l y 2.36 b y 40, you get 94 and,
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13 therefore, I would expect her maximum voluntary ventilation 14 at the b o t t o m of the page to be 94.
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15 Q. Basedupon what, in fact, she did on the other 16 test? 17 A. Correct.
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18 Q. So, is there -- how does th cross check work in
19 her case?
20 A. It indicates that the maximum voluntary ventilation j
21 is well b e low what would be expected on the basis of her 22 other tests. 23 Q. Now, what type of opinion or what o p i nion do you
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24 have with regard to this finding on the M W ?
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1 A. Well/ it is clear that this was an improper, 2 inadequate test. In the lung function, as a generality about 3 lung function testing, we pay attention to the maximum
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4 values. Lung function tests of this type represent the 5 maximum that the patient can perform. Anything less than the
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6 maximum has to be disregarded. We are not interested in test j
7 results other than those which reflect the true maximum
8 capacity of the lungs.
9 Q. N o w , Doctor, this test v/as done for the
10 N o r t h w e s t e r n doctors by the Moberly Clinic, i s n 't that
11 correct? 12 A. That is correct. 13 Q. Now, Doctor --
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14 THE COURT: Before you get into your next section,
15 is this a good point to break? 16 MR. M U S G R A V E : I believe it is, Your Honor. 17 THE COURT: We will take a short recess at this
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18 time and then resume testimony. I would remind you that you 1
19 are not to discuss this matter among yourselves, with anyone
20 outside the jury panel or as of yet form any opinions or
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21 conclusions about the matters on trial. Court is in a short
22 recess.
23 COURT RECESSED:
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24
(The following proceedings were had in the hearing
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1 and presence of the jury)
2 DAVID_ CUGELh
3 having resumed the witness stand, being previously sworn,
4 testified further as follows:
5 DIRECT EXAMINATION
6 By
7 MR. JOHN R. M U S G R A V E .
8 Q. Doctor Cugell, we were talking about this M W test 9 when we broke and I think you had explained to us how you can 10 cross check the M W with the FEV-1 f r o m the other test. If 11 you can do that or if you can calculate what the M W should 12 be using the FEV-1. Why do people do the M W test or why do
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13 doctors do it? 14 A. Well, in evaluating lung function on the basis of
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15 effort dependent tests, it is advantageous to have separate 16 measures of the same functional capacity. It serves as a 17 check on whether the results are correct or not. It serves 18 as a check on whether the patient really did try. In this 19 particular example, one test was good and one test was poor
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20 but in other patients, the reverse might have been the case.
21 The FEV-1 might have been improperly done and the M W
22 properly done. So that we would have had a means of
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23 verifying the patient's effort or the manner in which the 24 test was performed.
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1 Q. I see. Then y o u cannot look or do I understand
2 that you cannot look at the M W in isolation in determining 3 whether it represents an abnormality of the lungs?
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4 A. Oh, I would expand that and say you should never
5 look at any single measure of lung function in isolation.
6 Q. Doctor, looking at D o r o t h y J e n n i n g s 1 other 7 spirometries and the FEV-1, for instance, the one done in
i :
8 November of *83 and the Car n o w 2 exam. Defendant's 1716, I
9 see that that was 2.39, I think that is a nine, or 2.38, 101 10 percent of predicted. Does that correlate with the FEV-1 on 11 the Northwestern pretty well? 12 A. Virtually identical.
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13 Q. And the FEV-1 that was done back in November of
14 '81, the very first one that we looked at here today.
15 Defendant's 1712, it reads an actual finding of 2.33 again,
16 101 percent of p r e d i c t e d for that FEV-1? 17 A. Correct.
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18 Q. Taki n g those readings into consideration, does that
19 further -- do those readings in any way affect or change your
20 opinion with regard to these M W values that.was found when
21 the Northwestern spirometry was read, the one that was done
22 by Moberly for Northwestern?
23 A. They only reinforce the o p i nion I have just stated
24 about the discrepancy.
51
1 Q. Now, Doctor C a r n o w has a dot on his dot charts for i
2 the M W done by Moberly for the Northwestern doctors saying
3 ii it is abnormal. Do you agree that the M W represents an
4 !abnormality of the lungs in any way?
i
5 A. No. The result is abnormal but in the c o n text of
6 all of the information we have already reviewed, there is no
7 jevidence at all to indicate that it represents lung disease.
8 Q. And your o p i n i o n for the a b n o r m a l i t y of the results
9 on the M W is what, sir?
10 A. It is quite c l e a r l y e ither inadequate p a t i e n t
11 effort or some technical factor but it is not related in any
12 jway to the status of the lungs.
13 i
Q. All right. D octor Cugell, I want to pass n o w to
14 1Ithe area of the other dots that D octor C arnow had in his
15 charts, not dealing with the result of the lung function !
16 [test, but with a symptom or complaint, if you will, that
17 [Dorothy Jennings had and for which Doctor Carnow put dots on i}
18 |his dot charts. The first ones I want to deal w i t h are
19 [complaints or symptoms of sho r t n e s s of b reath that got dots. j
20 And the shortness of b r e a t h dots are for the C a r n o w 1 exam,
21 the Carnow 2 exam, for the followup, w h i c h you may not know
22 Jthat but in March of '84, D o ctor C a r n o w or one of his r
23 jassociates had c o n v e r s a t i o ns w i t h these plaintiffs and if i
24 Ithey continued to have certain complaints or symptoms voiced.
52
1 that is called the followup and if they had those, then
2 Doctor Carnow was of the opinion that it was associated with 3 this chemical spill and he put a dot up there. But the
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4 testimony is that that was as a result of the followup and
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5 then also she had a complaint at trial with shortness of
6 breath. Those are the four dots we are talking about now.
7 Now, first of all, Doctor, with regard to shortness i i
8 of breath, can cigarette smoking and a resulting abnormality :
9 in the small airways cause a person to experience shortness
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10 of breath?
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, `! 11 A. A mild d egree of b r e a t h i n g d i f f i c u l t y cer t a i n l y can i
12 occur p a r t i c u l a r l y at times w h e n there is an a d ditional
j
13 insult such as an ordinary cold or things that people with
1
i 14 perfe c t l y healthy lungs don't n otice or some allergies. This t
15 in combination with the existing impairment of the small
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16 airways can indeed produce a mild degree of breathing 17 difficulty. 18 Q. Now, Dor othy Jennings' FEF75% findings, are they,
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19 in your opinion if you have one, bad e nough to result in a
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20 significant shortness of breath so as to impair her ability
21 to live an ordinary life?
22 A.` A b s o l u t e l y not.
23 Q. Now, D o r o t h y Jenn i n g s told D o ctor C a r n o w when she
24 first saw him in A u gust of '82 with regard to shortness of
53
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1 breath that she noticed musical breath sounds at night and 2 has developed shortness of breath after one block if she 3 hurries or with walking and talking at the same time She 4 has one flight dyspnea- Dyspnea, of course, as the jury will 5 recall is the shortness of breath? 6 A. Yes.
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7 Q. And when she then s a w him in November of '83, the
8 only reference to shortness of breath in his report was she
9 has poor wind and avoids the basement stairs in her house.
10 Are those, Doctor, inyour o p i n i o n s i g n ificant c o m p l a i n t s of I
11 shortness of breath would be related to severe lung
12 dysfunction?
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13 A. Well, they ce r t a i n l y don't co r r e s p o n d to the level
14 and degree of breathing difficulty that X encounter in many
15 of my patients with serious lung disease. And a v o i d i n g the
16 basement stairs, if I can get some o n e else to go d o w n to my
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17 basement, I would do that, too. That does not c o n s t i t u t e a
18 significant symptom in my opinion.
19 Q. Now, Doctor, I would like you to a ssume that
20 Dorothy Jennings testified at trial that she e x p e r i e n c e s what
21 she considers shortness of b r e a t h w i t h activity? t hat 22 additionally she has had a weight gain since 1978 going from
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23 117 pounds to 158 and, of course, you know her age during
24 this period of time in the mid 50s. Do you have an opinion, 1
54
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1 Doctor, as to whether this shortness of breath that she has
2 related to Doctor Carnow in these reports that X have 3 indicated to you is in any way connected with her cigarette 4 smoking or her dys f u n c t i o n shov/n in the small a i r ways by 5 these tests? 6 A. Well, as I have indicated, a mild degree of 7 occasional breathing problems might occur but that with the
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8 overall breathing capacity we have reviewed, there is no
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9 basis or reason to expect a substantial or significant amount '
10 of b r e a t h i n g diffi c u l t y or that the symptoms of w h i c h she
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11 complains represent any serious lung disease. She is, A, 12 getting older; B, o v e r w e i g h t ; C, as X recall r e latively
:
13 inactive; D, she has small airway disease; and, E, she smokes
14 a bit too much. It seems to me some level of symptoms are
15 more than accounted for by that combination and at most these
16 would be mildly annoying but hardly disabling.
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17 Q. But the symptoms or the statements that she m a d e to ! ?
18 Doctor Carnow in here, given those factors that you just went
19 through, would any of these statements she made to Do c t o r
20 Carnow surprise you that she might complain occasionally 21 about shortness of breath? 22 A. Not in the least. 23 Q. Incidentally, the four dots that I m e n t i o n e d to
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24 you, the C a r n o w 1 exam, the Carnow 2, I have read b o t h of
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1 those to you and the trial, I haven't read the testimony but
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2 I guess I did because the experience with shortness of breath
3 with activity, the followup, I have checked. Well, I will
4 have to come back to that later. I don't think there was
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5 really a mention of shortness of breath in the followup but I
6 wanted to show that to you. The other dots that then appear 7 on Dorothy Jennings' charts with regard to symptoms again,
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8 the pulmonary, card i o v a s c u la r area is a dot during or in 9 connection with the Carnow 1 exam for wheezing. No other 10 time just appears under the C a rnow 1. I would like to read
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11 to you what she reported to Doctor Carnow in the Carnow 1
12 exam in connection with wheezing. She has noticed wheezing
j
13 beginning in the Spring of 1982. And then I think that
14 sentence I read to you earlier where she notices musical
15 breath sounds at night. I read that to you earlier. That
16 might be something else that relates to that. And I believe
17 that is the extent of the complaints mentioned that she made 18 to Doctor Carnow upon which this dot is based.
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19 Doctor, is that type of statement enough to make a 20 d i a g n o s i s of an abnormality of the lungs as a result of
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21 wheezing, in your opinion?
22
A. Well, if it is a rare or one time event, there is
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23 no associated abnormal findings either on examination or by 24 laboratory testing, it seems unlikely that that represents
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56
n
1 any significant serious organic disease. 2 Q. Well, Doctor, there was a p l a c e on Doctor Carnow's
3 charts for abnormal lung sounds under physical examination. 4 And there were no findings of abnormal lung sounds on either
5 of the Carnow examinations and you have reviewed the
6 Northwestern examination and there were no abnormal lungs
7 found there either, were there?
8 A. Correct.
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9
Q. G iven that information, do you believe if she was
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IO having a wheeze at that time, that is of any significance, 11 any significance with regard to any dysfunction of her lung?
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12 A. Well, wheezing can be a sign of serious disease but j
13 if it is, then it is pe r s i s t e n t and it is present all the 14 time and it is readily identifiable on examination the fact 15 that she noted it but at none of the examinations was it
i t
16 found m akes it a very i n significant complaint in my opinion. i !
17 Q. Doctor, a p e rson that smokes can -- can smoking and I
18 smoking to the degree that Dorothy Jennings* history
19 indicates having resulted in your opinion as you have told us I
20 in the FEF findings, the small airway obstruction, can that 21 in and of itself cause an occasional wheezing? 22 A. Absolutely.
23 Q. Doctor, now, when she made this complaint of
24 wheezing, that was in an e x a m ination of August 20, 1982, and i;
57
1 again there was no physical finding of wheezing. I would 2 like to show you -- let's just mark this. Now I have had 3 marked as Monsanto's 1720, these are records from the Ellis 4 Fischel State Cancer Hospital in Columbia where Dorothy
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5 Jennings went to have her breasts examined and in connection j
6 with that -- and this, by the way, is dated August 23, 1982, j
7 and this would be three days aftershe saw Doctor Carnow when
8 she made this complaint about wheezing beginning in the
9 Spring of '82. At least as recorded in Doctor Carnow's or
i
10 his associate's notes. A physical exam was done at that time
11 and beforehand a review of systems was made and referring you
12 to page 2 of this review of systems, would you look under CV j
13 and under the respiratory section and under the
14 cardiovascular section there in the review of systems and 3
15 whether there is any mention of complaints of wheezing, three
16 days later?
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17 A. Well,, there is a m iddle section of this page
18 refers to the resp i r a t o r y s y s t e m and se p a r a t e l y to the
19 cardiovascular s y s t e m and it says quote, "The p a t ient denies
20 any chest pain or p a l p i t a t i o n s or any other chest
21 complaints," and there is no m e n t i o n of whe e z i n g here
22 anywhere.
23 Q. Now, assuming that that is in fact what happened,
24 that she denied any other, any problems with her chest which 1
58
1 would include wheezing, does that in any way further your
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2 opinion about this complaint of wheezing that she made?
3 A. Well, clearly it was an inconstant, irregular and
4 infrequent event or it would have been noted on these other
5 occasions.
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6 Q. Do you have an o p i n i o n as to w h e ther D o r o t h y 7 Jennings' reported statement to Doctor Carnow that I have 8 read to you is in any way as s o c i a t e d w i t h any lung disease? 9 A. Yes, I have an opinion. 10 Q. What is that, sir? 11 A. There is no evidence whats o e v e r that this lady has 12 any serious lung disease. 13 Q. Okay. Doctor Cugell, that is all the q u e s t i o n s I 14 have about Dorothy Jennings and I would like to move on now
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15 to Joyce Kemner. Well first again, Doctor Cugell, talk about ;
16 the dots' that appear on Doctor Carnow*s charts with
17 connection to the pulmonary lung function tests? There are
18 dots there for four tests, C a r n o w 1, C a r n o w 2, N o r t h w e s t e r n
19 and the one done at Boone Clinic again and they all involve
20 the same portion of tests, that being the FEV-1 over the /
21 FVC.
22 Now, we didn't talk about that earlier today and I
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23 know we talked about it a month ago but just briefly before j
24 we get into it, could you tell us what is this FEV-1 over
59
1 FVC? What does it mean and how is it used? 2 A* Well, that is, those letters stand for the forced
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3 expiratory volume in one second* That is the initial one
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4 second period of this forced expiratory maneuver divided by 5 the forced vital capacity. 6 Q. We have talked about b o t h of those earlier today? 7 A. Yes.
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8 Q. But not when they are comp a r e d to each other. Why 9 are they compared to each other in this ratio manner? 10 A. The value that results is a p e r c e n t a g e b e c ause it
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11 is one volume divided by another volume and, therefore, you 12 calculate a percentage. This is perhaps one of the more
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13 useful measures of breathing capacity in that it determines 14 how, not only how much air that the p a t i e n t expires but how 15 fast it comes out and how fast the initial b e g i n n i n g part of
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16 the vital capacity comes out as opposed to the FEF75% which
17 we have just finished di s c u s s i n g w h i c h reflects p r i m a r i l y the i 18 rate at which the air comes out when the lungs are small and
19 they are almost empty. Now we are talking about how much air
20 comes out and how fast it comes out when the lungs are big
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21 and expiration is beginning. 22 Q. All right. Now, the first spiro m e t r y that I want
23 to review with you is the one that was done. It is the
24 earliest one that we have any record of before or after the
60
1 s p i l l f the one that was done in connection with Doctor
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j2 Carnow's first exam. Handing you now what has been marked as
j3 Defendant's 1721, this is the spirometry done on Joyce Kemner
4 in connection with the Carnow 1 exam in August of '82, is it 5 not?
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6 A. Yes.
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7 HR. MUSGRAVE: I would offer that in evidence and 8 request permission to pass copies to the jury, Your Honor. 9 MR. CARR; No objection. 10 THE COURT; Admitted without objection.
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11
(Defendant's Exhibit 1721 is passed to the jury).
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i 12 Q. Now, Doctor Cugell, the two components then ofthis |
*
13 ratio, the first of those being the FVC. What is it on Joyce i I
14 Kemner*s August of '82 spirometry?
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15 A. Well, this exhibit contains two sets ofnumbers. 16 In the middle of the page are those that are the most
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17 representative test results and at the bottom are the results j
18 of three separate measurements.
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19 Q. I think you told us, did you not, when yo u were 20 here earlier that the best of those three separate 21 measurements is taken wherever they may appear in any one of
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22 those three tests, is that correct?
23 A. Well, in general, the procedure is to take the best
24 s e t .
61
1 Q. The best set, all right. Well, then, looking at the 2 three ones at the bottom, they have three different FVC for 3 three different tests?
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4 A. Correct. 5 Q. The one at the top is one of the three d o w n below, 6 being the best of the three?
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7 A. Correct.
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8 Q. Now, of those three, then, do we have d i fferent 9 measurements on the three tests of the FVC? 10 A. All three are different.
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11 Q. Now, do you expect some difference in these tests, 12 Doct o r ? 13 A. Well, yes, you do a little bit. The patient needs
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14 to become familiar with the procedure and may do the test a
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15 little b e tter on one effort than on another and the p u r pose 16 of doing multiple determinations is to have some .confidence 17 that the results, the best result you get is in fact the
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18 best. And curr e n t crit e r i a of' the Social Security Ag e n c y
19 require that the forced vital capacity test be conducted
20 su f f i c i e n t times to get two results that agree w ithin five
21 percent.
..
22 Q. All r i g h t . And --
23 THE COURT: Before you go into this, let's break
24 for lunch at this point.
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1 refer to it, Doctor. 2 A. Thank you. Yes. 3 Q. And/ Doctor/ these a r e the p u b l i c a t i o n s that you 4 have referred to that you expect the world to rely upon/ 5 isn't that correct/ sir?
6 A. They were not publications/ s i r r they were papers
7 presented. There's a difference. 8 Q. Yes, there is a difference. Two of them were 9 presented and one was p u blished/ w a s n ' t it/: sir? 10 A. T h a t ' s t r u e f sir. 11 Q. You expect the w o rld to rely u p o i t / don't you, 12 sir? 13 A. Yes, sir, but you w e r e t a l king about the A M A 14 report. 15 Q. Doctor, Doctor, you w a n t to a nswer a ques t i o n that 16 I haven't asked* Would you direct your attention to what I'm 17 talking about, would you, sir, please, sir? 18 A. I am trying to answer the question you raised 19 originally about the AH A report. 20 Q. Doctor -- 21 A. You did raise it, didn't you? 22 Q. Doctor, would you back up p l e a s e and listen to me 23 just for a moment. W o u l d you do that, sir? No w have we got 24 it established, sir, that you said these things about only in.
'" 1I
1 MR. MUSGRAVE: All right, Your Honor.
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2
THE COURT: We will break for lunch at this time.
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3 We will resume again at one o'clock. I would remind you that
4 the admonishments that I gave you earlier will apply too
5 during this lunch break also. Court is in recess.
6 COURT RECESSED:
7 (The following proceedings were had in the hearing 8 and presence of the jury)
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9 DAVID COGELL 10 having resumed the witness stand, being previ o u s l y sworn, 11 testified further as follows: 12 D I RECT EXAMINATION 13 By 14 MR. J O H N R. MUSGRAVE.
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15 Q. Doctor Cugell, before we proceed w ith Joyce Kemner,
16 I want to come back a moment to D o r othyJennings .and
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I 17 particularly back to Defendant's 1719 where I had put up the i
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18 various values for the FEF75% on those six tests. I think you !
19 pointed out to me at lunchtime that I reversed a couple of
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20 these, had I not?
21 A. Yes. 22 Q. You have the exhibits there, do you not, that are 23 the underlying support for that chart? Let me give them to
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24 you, Doctor. Just so we can get this correct, would you just j
63
1 tell me where I went astray here? 2 A. The third item dated 8-20-82, really those numbers 3 belong at the bottom of the page and the final item dated
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4 3-24-85 belongs up where the 8-20-82 numbers are, 5 Q. Okay. So if I c hange this b o t t o m 380, then this 6 would become 24, is that correct?
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7 A. C o r r e c t .
8 Q. And do likewise then under the FEF actual, the
9 b o t t o m would b e com e 85 and the top would become 55, is that
10 correct?
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11 A. Correct.
12 Q. Doctor, do I now have it correct on Defendant's 13 Exhibit 1719, to correspond with the underlying exhibits? 14 A. Yes, sir.
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15 Q. And the fact that we have just reversed these, does :
16 that in any way change anything that you told us .your
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17 opinions and conclusions based upon these documents? 13 A. Not in the least.
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19 Q. All right. Thank you. Getting back then to Joyce
20 Kemner, Doctor, you have D e f e ndant's 1721 there?
21 A. Yes, sir. 22 Q. And I b e l ieve when we broke, we just had you
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23 refresh our m emori e s -about this ratio of FVC to the FEV-1.
24 Now, this spirometry then, Doctor, I think you were telling
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1 us that there were three tests that had been run with regard
2 to the FVC and you were also talking about reproducibility
3 and the standards I believe of the Social Security
4 Administration on reproducibility?
5 A. Yes.
6 Q. Do these three tests that w e r e done meet the
7 standards that you accept as being necessary for reliability
8 of the test with regard to reproducibility?
9 A. No, they do not. 10 Q. And could you point out to us how and why they do
11 not, Doctor?
12 A. Well, the three separate results are indicated at 13 the bottom of the page and demonstrate that the forced vital 14 capacity on effort number one was 3.20, on effort number two
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15 was 2.73 and on effort number three was 2.56 and no two of
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i 16 those agree appropriately and just on the basis of the forced
17 vital capacity, they are not acceptable. If you c o m p a r e t hem i
18 on the basis of some of the other results such as the forced i
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19 expiratory volume in one second, that is the third line, you j
20 have a similar poor agreement. 21 Q. With regard to the FEV-1, it ranges f rom a high of. 22 1.27 to a low of .87?
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23 A. Correct.
24
Q., Now, Doctor, would you then be able to rely upon
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1 this spirometer in determining if, in fact, there was an
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2 abnormal FVC over -- pardon me -- FEV-1 over FVC?
3 A. No, I would not.
4 Q. Doctor, with regard to the findings here on this 5 FEV-1, the low there of .87 or let's take the high of 1.27 6 which is the best that she did, is that m a r kedly low?
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7 A. Very markedly low, yes.
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8 Q. And if, in fact, that was a true reading, that was 9 the most that she would be able to deliver in that one
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10 second, would you expect there to be clinical sympt o m s and
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11 findings associated with that?
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12 A. Most certainly.
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13 Q. And would they be -- could you descr i b e for us what j
14 you would expect to find?
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A. Well, I think any p erson age 37 who was five feet
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16 nine inches tall and had only 1.27 liters w o r t h of air, in the i
17 first second of the vital capacity effort would be severely
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18 limited in their exercise tolerance arid v e r y symptomatic.
19 Q. Now, Doctor, let me then read to you what was
20 reported to Doctor Carnow in August of *82 when this
21 spirometry was done by Joyce Kemner in connection w ith her
22 pulmo n a r y complaints, if you will. She states that she has
23 some shortness of breath and wheezing. This is not present
II
24 all of the time but seems to relate just to rain. Odors tend !
66
]
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1 to intensify the problem also. That is the extent of what
2 was recorded when she was examined at the time of this l
3 spirometry. Are those symptoms, those complaints compatible
4 v/ith a finding of an FEV-1 of 1.27?
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5 A. Not at all.
6 Q. Would that in any way change your o p i n i o n as to
7 reliability of this 1721, the Carnow 1 report?.
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A. On the contrary. It supports my i n t e r p r e t a t i o n
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9 that these are unreliable values.
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10 Q. Now, Doctor, what was Joyce Kemner's height on this j
11 spirometry done in *82? 12 A. It is listed here as 69 inches.
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Q. And is height an important factor in c o n n e c t i o n
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14 with determining a predicted value? 15 A. It is the critical factor, yes.
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16 Q. It is the critical factor. W h y is that, D o c t o r ? 17 A. Because the best -- these predicted numbers are 18 based upon thousands of measurements that were made on
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19 perfectly healthy non smoking citizens. The results are
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20 related to the age and to the height, and the correlation 21 between results and height is the b e s t .c o r r e l a t i o n s that can
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22 be made. Therefore, predicted values vary primarily with
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23 height, and height is used in conjunction with age and there
24 aredifferent sets for men and women, but height and age are |
67
1
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1 the major factors from which we can predict an expected
2 result.
3 Q. All right. So, if Doctor C a r n o w had a dot on his
4 chart saying that this spirometry done in August of *82 was 5 abnormal, would you agree or disagree with that?
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6 A. Well, the reported numbers are abnormal.
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7 Q. But are they reliable so you could as a medical
8 doctor report them as abnormal?
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9 A. I certainly would not depend on them for any
10 purpose.
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11 Q. All right. I would like to move on to the next
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12 spirometry that was done in time which would bring us to one ! .i
j13 done at Boone Clinic in April of 1983. Handing you now what
14 has been marked as D e f e n d a n t s 1722, Doctor Cugell, this is
15 the spirometry of Joyce Kemner that was done at the Boone 16 Clinic April 6, 1983, is it not? 17 A. Yes, sir.
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18 Q. Nov/, this again appears as a dot on Doctor Carn o w * s *
19 charts for the FEV-l/FVC ratio.Now, would you, first of
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20 all. Doctor, and I note in this particular instance that 21 there was a test done before a bronchodilator was
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22 administered and after one was administered?
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23 A. C o r r e c t .
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Q. Nov/, the purpose again I think you told us about
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68
1 that a month or so ago, I guess longer than that, but again
2 just tell us briefly if you could what is the purpose of
3 performing these lung' func t i o n tests, one with a
4 bronchodilator and one without? 5 A. It is quite commonplace in measuring lung function
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6 to monitor the results of the tests, and if they are abnormal
7 or if they show signs of limitation on air flow, to
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8 administer a drug that has the capacity to dilate the
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9 bronchial tubes and thereby eliminate or reduce this air flow |
10 limitation and, in other words, to see if there is a measure
11 of reversibility to the obstruction of air flow to this
12 abnormality that is observed, 13 Q. All right. Now, Doctor, then again with reference
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14 to the broncho -- or to the spirometry that was done before
15 the bronchodilator was administered, what was the FVC value
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I 16 and what is your opinion with regard to the FVC as whether it j
17 is normal or abnormal? 18 A. Well, the forced vital capacity was 3.56 liters.
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19 That is the first number in the first line and that is within i E
20 the normal range.
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21 Q. All right. W h a t about her FEV-1?
22 A. The FEV-1 on the other hand was 1.95 liters and was 23 only 57 percent of the predicted at this time and that
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24 clearly is abnormal.
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1 Q. All right. Is that value, though, better than on 2 the Carnow 1 as far as the FEV-1, the ones that you felt were 3 unreliable?
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A. Oh, it is m a r k e d l y better. D r a m a t i c a l l y different.
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5 Q. All right. But still abnormal? 6 A. But still abnormal.
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7 Q. Now, is her ratio then abnormal, Doctor?
8 A. Well, of course. If you have an abnormal v a l u e |
9 over a normal value, the ratio necessarily will be reduced as 10 it is in this case.
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11 Q. All right. Nov/, what about after the 12 bron c h o d i l a ta t i o n on this p a r t i c u l a r instance? Could yo u 13 tell us whether there was any change as you have said in
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14 connection v/ith the use of b r o n c h o d i l a t o r after the
15 bronchodilator was administered and the test was then
16 performed again? 17 A. Well, there are some minor d i f f erences in some of
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18 the numbers but, in summary, there is-'no change. There is no
19 effect on breathing capacity from this bronchodilator
20 administration.
21 Q. Well, Doctor, let me just ask you some more
,
22 questions about that. I note, for instance, that the FVC
'
23 before bronchodilator is 3.56. The test was reported with a 1
24 bronchodilator being a d m i n i s t e r e d first. The FVC is 3.69.
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1 Vieil, that is an improvement, is it not?
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I 2 A. Yes, but that degree of change is so small as to be !
3 clincally meaningless and, in fact, is within the 4 reproducibility of the test.
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5 Q. All right. And, likewise, I see the FEV-1 and
6 since we are talking about the ratio, I will go to these.
7 The FEV-1 before bronchodilatation was 1.95. After
j 8 bron c h o d i l a ta t i o n it was 1.91. It went down a little bit. Is
9 that likewise just as you h a v e told us when it went up and it
10 wasn't really subs t a n t i a l l y d i f f e r e n t ? When it goes d o w n a
11 little bit, is that essentially no different also? 12 A. It is clearly no d i f f e r e n t b e c ause those changes 13 are almost smaller than we can reliably measure from the 14 spirograms. 15 Q. Then, did the b r o n c h o d i l a t o r an effect w i t h regard
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16 to Joyce Kemner? 17 A. Mo.
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18 Q. Mow, Doctor C a r n o w has testified that in fact with
19 regard to this particular spirometry or these two
20 spirometries, that her p u l m o n a r y lung function test was worse
21 after bronchodilatation than it was before. Do you agree or
22 disagree with that?
23 A. I disagree.
24 Q. Is there any basis, based upon this, these two
71
1 tests before and after bronchodilatation to make such a 2 statement in your opinion? 3 A. Well, I think the numbers clearly show that the
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4 changes are so small that they could be plus or minus a tiny 5 amount. These degree of change is so small to be within the 6 limits of ability to measure them and clearly one cannot
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7 conclude that it is worse or better. The only logical 8 conclusion is that there is no effect. 9 Q. All right. And what is the height that wa s 10 recorded at this time for Joyce Kemner? 11 A,. At this time she was listed as being 71 inches or 12 two inches taller than on the previous occasion.
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13 Q. I would like you now to review the third s p i r o m e t r y i
14 in order of date, Doctor. This would be the one done for the
15 Northwestern exam. Handing you now, Doctor, what has been
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16 marked as D e f e n d a n t s 1723. This is the spirometry done in
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17 connection with the Northwestern exam, is it not?
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18 A. Yes, sir.
19 Q. For Joyce Kemner?
20 A. Y e s , s i r .
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21 MR. MUSGRAVE: I would offer that in evidence and 22 request permission to pass copies to the jury, Your Honor.
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23 MR. CARR: No objection, Your Honor.
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24
THE COURT: It is admittedwithout objection,
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72
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1 (Defendant's Exhibit 1723 is to the jury)* 2 Q. Now, Defendant's 1723, first of all, Doctor, what
3 is the height that is recorded on this when this was done 4 down in Moberly for the Northwestern doctors? What height
5 did they record?
6 A. At the top of the report it says height 61.
7 Q. 61. And, I believe, on the two that we just looked ! ir
8 at previously, you told us that in *82 on Carnow 1 it was
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9 recorded at 69 and in April of '83 height was recorded at 71? j
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10 A. Yes, sir.
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I 11 Q. And you have seen and will be reviewing here in a
12 minute some other spirometries which have heights that are 13 more in accordance with which of these two numbers or three 14 numbers?
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15 A. Well, clearly the 69 or 71 is c o r rect and that this j
16 in all probability was a typographical error, misprint or 17 failure to record the right number or an error.
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18 Q. All right. Looking at the predicted values, can
i 19 you d e t e r m i n e if, in fact, they used a height of 61 inches as j
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20 opposed to being a typographical error and maybe it should
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21 have been typed as 71? Did they use the predicted values for
22 71 or 61? 23 A. Well, by typographical, I meant the e n t r y was 24 incorrect. The rest is calculated by the m a c hine
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1 automatically so if 61 was entered, then the rest of the 2 computations will be based on that erroneous entry* It is
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3 clear that is what happened because the predicted value, for
4 example, l e t 's take the forced vital capa c i t y or the first
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5 line shows a predicted value of 3*23 whereas on the previous
6 tests, Exhibit 1722, using the same height but one year
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7 younger age, the predicted value was 4.40. So there is an
8 enormous difference and clearly as a result of the use of the
9 incorrect value for the height. 10 Q. So, the shorter height lowers the p r e d i c t e d v alue? 11 A. Correct. 12 Q. And then would incorrectly tell you what the 13 predicted is in this case?
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14 A. That will have the effect of increasing the p e r c e n t
15 predicted values throughout. 16 Q. Okay. And that would be true also of the F EV-1? I 17 mean, she, in fact, had an FEV-1 that measured 2.15 but it
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18 was just not 85 percent of the right predicted value?
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19 A. It would have been appro x i m a t e ly 60 p e r c e n t that
20 had the right predicted value been employed. 21 Q. And the FVC in this instance had -- l e t 's say the
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22 C a rnow 1 was done in '82. Had the predicted value for h eight 1
23 71 that was used at Boone Clinic in April of *83, some four
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24 months earlier, six months earlier, I should say, had that
_____________________________ ________
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1 been used, what would her FVC have been? 2 A. Approximately 75 percent of predicted instead of 3 the stated 102.
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4 Q. Now then, are you able, Doctor, to rely upon this
5 spirometer that was done by Moberly for the Northwestern 6 doctors in originating conclusions about the status of the
7 pulmonary lung function test of Joyce Kemner?
8 A. Well, of course. We can, first of all, recalculate j
9 predicted values and recalculate percentage numbers. There 10 is no d i s a g r e e m e n t about the actual p e r f o r m a n c e of the 11 patience. The only thing we are discussing at the moment is 12 v/hat values we com pare them to. So that there is no reason 13 to disregard or overlook the performance.
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14 Q. And what would the p e r f ormance tell you using the 15 appropriate predicted values and by using the right height? 16 A. Well, we would have values e s s e ntially .the same as
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17 those observed six months earlier and as noted on Exhibit
18 1722.
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19 Q. That would be the Boone Clinic?
20 A. Yes.
21 Q. So you would have a normal FVC andan abnormal
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22 FEV-1? 23 A. 24 Q.
Yes. And the ratio would thus be abnormal?
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1 A. Yes. 2 Q- D o c t o r , earlier and b efore w h e n you were here
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3 before we talked about John Dominguez and you recall that he 4 had an FVC that was over 100 percent of predicted and he had 5 an FEV-1, I t h i n k , was 85 percent of the predicted- Both of
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6 those were normal but because of that variation being as it 7 was, his ratio was abnormal?
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8 A. That is correct-
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j9 Q. And you explainedto us about the basketball player
i 10 and the little test that you use to try and trick the medical j
11 students with- Does that apply in this situation here
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12 because we have got 102 and and 85?
13 A. Well, not at all. First of all, 102 and 85 would
14 be different if we used the proper predicted values so we are '
15 not talking about e x c e s s i v e l y large performance- Vie are
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16 discussing a discrepancy between two results, both of which 17 are in fact abnormal- Contrary to the percentage numbers
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18 listed on this report.
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19 Q. Now, one other thing w i t h regard to this
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20 spirometry. We were t a l king about the M W w i t h regard to
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21 Dorothy Jennings, I believe?
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22 A. Yes-
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23 Q. And you were saying that a way to double check it, j
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I believe, was to do what, to multiply the FEV-1 by a certain
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1 number?
2 A. Yes. The M W should equal the FEV-1 multiplied by
3 40.
4 Q. And does it in this instance?
5 A. And in her case it was quite a discrepancy and in
6 this case if you apply that p a r t i c u l a r rule, you would come
7 up with an M W value of 82 and, in fact, her performance was
8 81. 9 Q.
That would be by taking 40 times the 2.15 which was
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10 the FEV-1 value on this?
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A.
My arithmetic needs to be checked but that would be
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12 86 instead of 81. 13 Q. Now, we have one other s p i r o m e t r y to look at.
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14 Doctor, and let me get that for you. This would be the one 15 that was done in November of *83 in c o n n ection with the 16 Carnow 2 exam. Handing you now what has been marked as 17 Defendant's 1724. This is the spirometry done November 11,
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18 1983, on Joyce Kemner in c o nnection w i t h the C a r n o w 2, exam,
19 is it not, Doctor?
20 A. Yes, sir. 21 MR. MUSGRAVE: I offer that into evidence and
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22 request permission to pass copies to the jury.
23 MR. CARR: No objection.
24 THE COURT: It is admitted without objection.
77
1 (Defendant's Exhibit 1724 is passed to the jury).
2 Q. Her height on this Nov e m b e r of '83 s p i r o m e t r y is 69
3 inches?
4 A. Yes.
5 Q. 6 before?
Compatible with the 71 and the 69 we had seen
7 A. Correct.
8 Q. And her FVC on this occasion, one of the c o m p o n e n t s j
9 of this ratio, was it normal or abnormal, Doctor?
10 A. It is excellent, 3.54.
11 Q, And how about her FEV-1?
12 A. Not so good. It is only 71 p e r c e n t of the
13 predicted value.
14 Q. All right. And her ratio then is abnormal?
15 A. Correct.
16 Q. Doctor, then, we have got four s p i r o m e t r i e s here,
17 the Carnow 1, the Boone Clinic, the one done for N o r t h w e s t e r n
18 and the Carnow 2? 19 A. Yes, sir.
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20 Q. W h ich of those, Doctor, are you able to use and
21 rely upon in reaching any opinion about the status of Joyce
22 Kemner's lung functions based upon these tests?
23 A. Well, having mul t i p l e m e a s u r e m e n t s on several
24 occasions is very useful but the single set of determinations
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1 that appear most reliable from the numbers in front of me are
2 those done on November 11, 1983, the Carnow 2 exam, because 3 their report includes the results at the bottom of the page
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4 of three separate individual patient efforts.
5 Q. All right.
6 A. It was on a basis of a d i s c r e p a n c y b e t w e e n three
7 similar efforts that made me discount the Carnow 1 exam by
8 the same criteria. At this time the three efforts were all
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9 very similar. The results were comparable and, therefore, I 10 am much more confident that these do indeed represent her
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11 maximum capacity. .
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j12 Q. All right. And so we can know e x a ctly what y o u are
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13 talking about, the three general individual runnings of the
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14 tests are shown at the bottom of 1724, numbers one, two and
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15 three?
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16 A. Yes, sir.
17 Q. And the FVC, how m u c h does it v a r y b e t w e e n those
18 three tests?
19 A. Well, hardly any. Two percent of p r e d i c t e d is the
20 maximum. 21 Q. As opposed to Carnow 1 where there was a m u c h
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22 greater variance, that being Defendant's 1721? 23 A. Varied by 20 percent.
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24 Q. And how about the FEV-1? Was there any v a r i a n c e on j i 79
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1 Carnow 2 between the three tests that was significant?
2 A. Three percent of predicted. Now, whereas
3 previously it went from 28 to 40 percent of predicted.
4 Q. So there was a three percent d i fference as opposed
5 to a --
6 A. 12.
7 Q. 12 percent. T h e n based upon the Carnov; 1, the one
8 that had this great variance, would you agree with Doctor 9 Carnow who testified that Carnow 1 showed a severe 10 obstructive defect?
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11 A. Well, the tests are abnormal but I think you cannot !
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12 ascribe any clinical significance to it without having some
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13 confidence that they truly reflect the patient's condition 14 and we have analyzed the results and concluded that they do 15 not. Therefore, I would not agree with the interpretation
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16 based on those numbers. 17 Q. Could you make a medical diagnosis or would yo u
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18 make a m e d ical diagnosis of a severe obstructive d efect based ! |
19 upon what was shown to you in Carnow 1 with those varied 20 values?
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A. No. I would conclude the tests were unreliable.
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I 22 Q. And you note, Doctor, on the Carnow 2 exam, the one |
23 that has the values repeated very close to each other, there
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24 is a reference written in there, mild obstructive pattern?
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1 A. Yes 2 Q, Would you agree w i t h that?
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3 A. Yes# 4 Q, All right. And would you agree that the Boone .5 Clinic, April of '83, w i t h the b e f o r e and after
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6 bronchodilator demonstrated a mild obstructive pattern? 7 A. Yes.
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8 Q. N o w , that is evidenced by what portion of this i
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9 ratio that goes into make up the FEV-1 over FVC? What aspect j i
10 of that is abnor m a l ?
11 A. The nume r a t o r of the ratio, n amely the forced
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12 expiratory volume in one second is the abnormal value whereas j
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13 the forced vital c a p a c i t y is okay.
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14 Q. And what can cause mild o b s t ructive defects,
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15 Doctor? 16 A* Well, that is a c h a r acteristic a b n o r m a l i t y that is 17 found in all of the so-called o b s t ructive lung diseases. 18 This includes asthma, bronchitis, early emphysema, tumor in 19 the windpipe. T ho s e are the major causes.
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20 Q. Has there b e e n any change in the findings v/ith
21 regard to those which evidence this mild obstructive defect
22 in Joyce Kemner over the years based upon these spirometries 23 that you feel are reliable as you so told us?
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A. Well, we only have data over a year or so period.
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1 Q. Over that p e r i o d , has there been any?
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2 A. And over that reliable data, over that one year or
3 eight month, six month period, and all of those are 4 essentially the same,
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Q. That year p e r i o d would be what, Doctor, f r o m when
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6 to when?
7 A, F r o m the Boone Clinic data that was done, tests
8 were d one on April 6, 1983. The M o b e r l y Northwe s t e r n test
9 done in October of *83 and the Carnow 2 which was done in 10 November of *83. 11 Q. Okay. I don't have any more copies of this but I 12 do have another one here, Doctor, that we could extend that
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13 period to see if there has been any change and let me have
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14 this marked. Doctor, handing you no w w h a t has b e e n m a r k e d as |
15 1725, this is a spirometry involving Joyce Kemner dated again j
16 March 25, 1985, done by D octor Carnow's office. This then 17 extends this peri o d of time to March of '85, does it not?
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18 A. Correct.
19 Q. All right. L e t 's compare that, then. How is her
20 FVC in M arch of *85?
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21 A. E s s e n t i a l l y identical with that obtained in
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22 November of '83.
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23 Q. All right. The v o lume being, do I read that right, i
24 of 3.49?
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1 A. Or 48, I can't tell.
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2
Q. And how about her FEV-1, the other co m p o n e n t of
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3 this ratio?
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A. It is 2.08 in 1985 and it is 2.22 in 1983. A g a i n
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5 essentially the same.
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6 Q. And so, then, p u t t i n g this into the q u e s t i o n that I \ i
7 asked you, over this period of time then that we now have 8 spirometries, has there essentially been any change as
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9 evidenced by these lung function tests in this mild
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10 obstructive pattern?
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11 A. None at all.
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12 Q. Now, there again, this one done in M a r c h of *75 13 like the one done back in April of *83 was done with
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14 bronchodilators being used in a second test, is that correct?
15 A. Correct.
j16 Q. And was there any change in her p e r f o r m a n c e on the
17 lung function test in 1985 after the bronchodilator was
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18 administered?
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19 A. Well, once again there are m i n o r n u m erical
20 differences but these are far from significant and no more
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21 than can be expected from the limitations of the methods of
22 the measurements. So there is no change in either '85 or
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23 '83. 24 Q.
Same situation in *85 and *83 when the
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1 bronchodilator was used? 2 A. Correct. 3 Q. Now, I think I have asked you and yo u told us 4 generally those things that can cause this mild obstructive 5 pattern. Doctor, let me ask you another question that will 6 incorporate some of the testimony that Linda Kemner or Joyce 7 Kemner gave at trial. Before I do that, I want to show you 8 one other document. I have now had the Court Reporter mark 9 Defendant's 1726. The report of Doctor Greenberger who 10 examined Joyce Kemner and per f o r m e d s k i n tests on her to 11 determine whether she had any allergic conditions and you 12 have reviewed that, have you not? 13 A. Yes, I have. 14 Q. - And what were the results of the skin tests? That 15 is, what was found, if anything, that she was a l l e r g i c to? 16 A. Well, the skin tests were p o s i t i v e for .multiple 17 things. Specifically trees, grass, rag weed, molds, dust, 18 cat and dog dander, 19 Q. Doctor, then I would like you to a ssume these facts 20 that at trial she testified, this is in October of 1984, 21 Doctor. That she had allergy troubles, hayfever before the 22 spill in January of 1979; that there had been no change in 23 her allergy problems since the spill; that her allergies 24 began in childhood and again this was done on the 22nd of
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1 October of *84, another day. Her allergies b e g a n at 2 childhood and they were pretty much the same as before the 3 spill. She felt she was allergic to dust, pollen, that sort 4 of thing. 5 And this testimony was also adduced in the
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6 examination. She stated that she and her husband ran a 750 7 acre farm driving tractors and they also bring the harvest
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8 over to the grain elevators. She stated that she usually 9 wears a dust mask and maybe even a hankerchief which helps
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10 quite a bit but on occasions and especially when she goes to !
11 the grain elevator, she will develop wheezing and congestion \
12 and will have to sit up all night. Those problems are 13 seasonal in the spring and the fall and that that has just
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14 been described to you was testified by her to be an accurate
15 description of her allergy problem that she had had for many 16 years and that wheezing condition is also associated w i t h 17 those allergy problems. That she sneezes a lot and the dust
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18 makes her throat clog up or close up and. she also gets short s
19 of breath and that she tends to wheeze and she makes noise !
20 when she breathes. And that those allergy reactions, with \
21 those allergy reactions she tends to get a sinus problem and
22 a cough and throat irritation and she getsthat whole list of j
23 symptoms that come with her allergy attacks and that those 24 allergy attacks have remained the same both before and after
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1 the spill of January of 1979.
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2
Assuming that testimony. Doctor, and the report
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3 there that Doctor Greenberger rendered with regard to her
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4 skin sensitivity, do you have an opinion as to whether or not !
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5 the mild obstructive problems evidenced by the pulmonary lung !
6 function tests that you have reviewed for us are in any way
7 related to those complaints and that background? 8 A. Yes, I have an opinion. 9 Q. And what would that be, Doctor?
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10 A. Well, I think they are fully and readily expla i n e d i|
j11 on the basis of. the long history of intermittent allergic and |
12 respiratory symptoms that this lady complains of.
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13 Q. Now, Doctor, early on when you were first here, we 14 talked about asthma, and asthma, as X recall, being a
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15 condition that will come and go?
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16 A. Yes.
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17 Q. And can be caused by a reaction to something that I | !I
18 irritates your small airways and makes them sensitive to that
19 irritant and go into spasm, is that correct? 20 A. Well, that is one possible location. That n e e d n ' t
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21 be confined only to the small airways.
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22 Q. Okay. Can you have an asthmatic condition -- can a j
23 person have an asthmatic condition and be in one of those
24 stages where they are not experiencing any symptoms yet still
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1
1 have some findings of abnormality on one of these pulmonary 2 lung function tests even though they are not wheezing and 3 having shortness of breath and feeling a tight sensation in 4 their throat because they are having an asthma attack? , 5 A. It is quite c h a r a c t e r i s t i c that people with asthma
6 in the symptom free interval have residual/ measurable
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7 abnormalities in lung function. That is typical for
8 asthmatics.
9 Q. The degree of impairment that is reflected on the 10 s pirometries of Joyce Kemner --
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11 A. Yes. 12 Q. -- would that be compatible w ith the person w ith 13 mild asthma and not experiencing any symptoms at that time 14 that would be suggestive of an asthma attack?
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15 A. It is completely compatible for an asthmatic during ;
16 the symptom free period. 17 Q. Doctor, I think you have also told us in your
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18 testimony that the bronchodilators not only used in
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19 performing these tests to see if there is any improvement but >
20 are those b r o n c h o d i l a t o r s a c t u a l l y used to treat these
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21 problems that asthmatic people have?
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A. Yes. And one of the purposes of incorporating it
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23 in the testing pro c e d u r e is to see if it will be useful as
24 treatment.
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X A*v
1 a very few cases they had these problems? Is that
2 established, sir?
3 A I wrote this in these three instances* sir. 4 Q. Is it established* sir* that you said these things 5 in these three instances that only in a few cases the workers
6 continued to complain?
7 A. Yes* sir. 8 Q. All right. And* Doctor* it is these -- it is that 9 fact that you want the world to rely upon* isn't that 10 correct* sir? 11 A. Yes* sir. 12 Q. And* in fact* the w o r l d has relied upon that* 13 h a v e n 't they* sir? 14 A. I d o n 't k n o w if t h e y have. 15 Q. Well* Doctor* your A M A co m m i t t e e relied upon it* 16 did t hey not* sir? 17 A. W h e r e in the A M A report is it, sir? 18 Q. Doctor, you were a member of the group that wrote 19 the report, y o u ' v e t e s t i f i e d that you're one of the authors 20 of the report, have you not* sir?
21 A. T h a t ' s true, sir.
22 Q. You are one of the a u t h o r s of the report* are you 23 not* sir? 24 A. Right, sir
1 IN THE.CIRCUIT COURT
TWENTIETH JUDICIAL CIRCUIT OP ILLINOIS \ . 2 ST, CLAIR COUNTY
3 F R A NCES Eft KEMNER, et al. 4 Plaintiffr 5 vs.
6 MONSANTOCOMPANY f
7 Defendant.
) ) ) ) ) No. 80-L-970
) )
) )
8 Before the HON. RICHARD P. GOLDENHERSH, Judge
9
10
11 REPORT OP PROCE E D I N G S
12 JURY TRIAL
13 M a r c h 7, 1986
14
15
16 APPEARANCESi
17 MR. REX C ARR & MR. JERRY SEIGFREID, A t t o r n e y s at L a w Appeared on Behalf of the Plaintiff.
18
19 MR. KENNETH R. HEINEMAN & MR. J OSEPH NASSIF, Attorneys at Law
20 Appe a r e d on Behalf of the Defendant.
21
22
23 MARSHA SCHNIPPER
24 Official Court Reporter
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1 Q. Well, we have two occasions, then. Let me back off j
2 a minute. Doctor, do you have an opinion as to whether Joyce j *l
3 Kemner has any asthmatic condition?
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4 A. -;'Qh, I think she c l e a r l y has asthmatic symptoms. ! i
5
Q. The b r o n c h o d i l a t o r s were used on her at least on
,
6 two occasions in these tests?
7 A. Yes,
8 Q. ;Alhd d i d n 't chang e - t h e situation, didn't make it any k *
9 worse, didn't make 'it any b etter as I think you have told us? -
10 A. Correct,
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11
Q. Is that compatibles Doctor, with her lung function
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12 tests showing a mild obst r u c t i v e p a t t e r n and her having a
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13 mild asthma or latent asthma of some kind? 14 A. Well, I think one has to consider the natural
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15 history of asthma and what happens to people that have been
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j16 afflicted w i t h it for a long period of time. This w oman had
17 allergies, asthma symptoms f r o m childhood. She is no w 36 or .
! 18 37 years of age or older. A s t h m a tends to disappear in young !
19 adults or during a d o l e s c e n c e in many people. In some,
20 however, it not only persists- but slowly increases in 21 severity and .it can eventually result in some limited but 22 fixed irreversible alterations in breathing capacity. I
23 think this is a perfect example of the natural history of
24 asthma in a person in w h o m it did not follow the com m o n
88