Document RpjJOrDe95VwekJkEZKyYXkza

KATHRYN M. DECKER DIRECT DIAL NUMBER (2011 960-9002 Pitney, Hardin, Kipp & Szuch (MAIL TO) P.O. BOX IB-45 MORRISTOWN. NEW JERSEY 07962-1945 (OCLIVCRY TO) 200 CAMPUS DRIVE FLORHAM PARK, NEW JERSEY 07932-0950 FLORMAM PARK (201) 966-6300 NEW YORK (212) 926-0331 TELEX 642014 FACSIMILE (201) 966-1550 October 14, 1993 Gregory D. Winfree, Esq. Litigation Counsel Union Carbide Corporation Law Department, E3-285 39 Old Ridgebury Road Danbury, Connecticut 06817-0001 Re: Colby v. Union Carbide Corporation Docket No. L-1979-91 Dear Greg: On September 20 and 21, 1993, I deposed Dr. Denis B. Fitzgerald and Dr. Richard Commentucci in connection with the above matter. A brief summary of the pertinent parts of their depositions, based upon my notes and recollection, is set forth below. DR. FITZGERALD Dr. Denis B. Fitzgerald is Board Certified in internal medicine, medical oncology and hematology (a copy of his curriculum vitae is enclosed) . He first saw Lawrence Colby when he was called in as a consultant during Mr. Colby's admission at Riverview Medical Center in February 1989 and continued to treat him up until the time of his death on May 5, 1989. Following Dr. Fitzgerald's initial assessment of Mr. Colby, he suspected that his history was consistent with some type of cancer and ordered additional tests and studies. After these studies and tests were completed, the primary source of the cancer was still unknown, although, the liver biopsy did reveal metastatic adenocarcinoma. At that time. Dr. Fitzgerald thought the most likely primary source was either the colon, stomach, or possibly even the pancreas. Nevertheless, a definitive diagnosis was not made until the post-mortem examination conducted by Dr. Gulli on May 5, 1989, which resulted in the finding of primary adenocarcinoma of the lung with metastasis to the liver as well as other organs. PRIVILEGED AND "CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER" UCC 075686 IB 11 I D OCT 1 9 1993 lil G.D. WINFREE Pitney, Hardin, Kipp & Szuch Gregory D. Winfree, Esq. October 14, 1993 Page 2 Dr. Fitzgerald testified that at some point between Mr. Colby's February and March 1989 confinements at Riverview, his family had inquired as to whether there was any causal connection between Mr. Colby's alleged exposure to PVC and his cancer. Dr. Fitzgerald explained to the family that without knowing the primary source of the cancer, he was unable to respond, to their questions. I chose not to explore this area with Dr. Fitzgerald further, so as to avoid having him offer an opinion relative to any possible connection between Mr* Colby's alleged PVC exposure and his primary lung cancer. (We anticipate that plaintiff's counsel may attempt to make Dr. Fitzgerald an expert in this regard). Dr. Fitzgerald continued to care for Mr. Colby during his March 1989 admission to Riverview when he was admitted for a cerebral infarct. He and his partner. Dr. Carmen, continued to treat Mr. Colby with chemotherapy, but with the type regimen that is usually associated with cancers of the gastrointestinal tract. During his March 1989 confinement, Mr. Colby also underwent extensive neurological evaluation that included a CAT scan of the head, MRI and spinal tap. However, this entire work-up was still inconclusive as to whether the neurological event experienced by Mr. Colby in March was metastatic or vascular in nature. Following his discharge from Riverview Medical Center in March 1989, Mr. Colby was next seen in consultation at Memorial Sloan Kettering by Dr. Ethan Dmitrovsky. This physician also concluded that the patient had adenocarcinoma of unknown primary with metastatic disease to the liver and concurred in Dr. Fitzgerald's treatment. Because Dr. Fitzgerald had spoken to Dr. Gulli, following the post-mortem conducted on May 5, 1989, he testified that Dr. Gulli had described the size of Mr. Colby's primary tumor in the lung as being quite small and therefore difficult to detect on xray or CAT scan. According to Dr. Fitzgerald, this size tumor is known to occur with adenocarcinoma. During the course of Dr. Fitzgerald's deposition, we were also able to obtain a complete copy of the post-mortem examination conducted by Dr. Gulli which includes the microscopic description of the primary tumor (a copy is enclosed). This document had not been included in the records which we previously had received from the hospital. DR. COMMENTUCCT Dr. Commentucci continues to be the physician for the Colby family. His specialty is family practice and sports medicine (a copy of his curriculum vitae is enclosed). Dr. Commentucci graduated from the University of Bologna (Italy) Medical School in 1971. He began his practice in New York City and continued practicing there until 1978, when he started his practice ' in PRIVILEGED AND "CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER" UCC 075687 Pitney, Hardin, Kipp & Szuch Gregory D. Winfree, Esq. October 14, 1993 Page 3 Atlantic Highlands, New Jersey. Shortly thereafter, he began treating Mr. Colby and his family. Dr. Commentucci is not board certified, but is board eligible. Dr. Commentucci could not locate Mr. Colby's records, and had no explanation as to what had happened to them except to state that during the course of moving his office, these records were either misplaced or destroyed. Accordingly, his testimony was based entirely from his recollection and hospital records that he had retained for Mr. Colby's confinements at Riverview beginning 1981 through May 1989. Beginning in 1981, Dr. Commentucci saw Mr. Colby approximately every three months for maintenance of his high blood sugar, diabetes and gastrointestinal complaints. He does not recall whether or not the first time he had occasion to treat Mr. Colby was during his admission at Riverview in 1981 or whether he had seen Mr. Colby in his office prior to that first admission. As reflected in the medical records. Dr. Commentucci was treating Mr. Colby primarily for "cirrhosis of the liver". This diagnosis was made by Dr. Commentucci, based upon Mr. Colby's enlarged liver and his other physical complaints, which Dr. Commentucci associated with his alcohol consumption of somewhere between 6 to 12 cans of beer per day. Dr. Commentucci has no recollection of Mr. Colby's work history, except that he recalls Mr. Colby being a crane operator for many years. Apparently, Mr. Colby used to talk about the stress that he experienced on the job. However, Dr. Commentucci has no recollection of the specific job sites where Mr. Colby worked as a crane operator. He confirmed Mr. Colby's history of smoking and alcohol abuse, as reflected in the hospital records. He also confirmed that during the 1983 admission, Mr. Colby was advised to seek help through Century House, an alcohol rehabilitation center in the community, but had no idea whether Mr. Colby had followed through on this advice. Dr. Commentucci testified that Mr. Colby's drinking was a concern and he continually advised him to cut down on his alcohol intake. Dr. Commentucci has no recollection of preparing his report dated June 24, 1986 (a copy of which is enclosed) for Vincent Jennings, Mr. Colby's workers' compensation attorney. He also does not recall ever discussing with Mr. Colby his work experience with PVC for eight years as set forth in this report. This testimony was inconsistent with Dr. Commentucci's next statement in his report that "the patient states that he has been exposed to over 100 times the present acceptable dose of the chemical on a daily basis". When pressed further on this point, PRIVILEGED AND "CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE ORDER" UCC 075688 Pitney, Hardin, Kipp & Szuch Gregory D. Winfree, Esq. October 14, 1993 Page 4 Dr. Commentucci was emphatic in stating that unless the patient had reported this information to him, he would not have phrased the sentence in this fashion. However, he has no specific recollection of discussing the chemical with Mr. Colby, nor any recollection of discussing this report with Mr. Jennings. When asked to explain his description in this report of Mr. Colby's "liver abnormality", Dr. Commentucci testified that the enlarged liver as noted during Mr. Colby's various hospital admissions could have been connected to his exposure to PVC. However, he deferred then and still defers now to a gastroenterologist or other specialist for an opinion as to the causal connection between PVC and Mr. Colby's liver disease. When this area was explored further by plaintiff's counsel. Dr. Commentucci conceded that he was familiar with the literature that associates PVC with angiosarcoma. He also testified that generally there would be findings of liver dysfunction in a person that has been exposed to PVC. However, a direct connection between Mr. Colby's condition and this statement was never made during his deposition. However, Dr. Commentucci did opine that Mr. Colby's cause of death was not due to his enlarged liver, or that liver condition associated with Mr. Colby's alcohol intake, but instead was caused by the primary lung cancer found on autopsy. Based upon the foregoing, we anticipate that Mr. Levinson will attempt to obtain reports from both Dr. Fitzgerald and Dr. Commentucci for the purpose of having them opine about Mr. Colby's alleged PVC exposure and ultimate demise. Should this occur, we have reserved our right to redepose these physicians. As compared to Dr. Fitzgerald, Dr. Commentucci is not a very effective witness and as reflected in his CV, does not appear to have the credentials necessary to offer an opinion regarding the causal connection between Mr. Colby's alleged PVC exposure and his primary lung cancer. On the other hand, Dr. Fitzgerald is an extremely effective witness and may also be called upon at trial by plaintiff's counsel to describe Mr. Colby's condition from February 1989 up until the time of his death. Please call me if you should have any questions regarding the above. PRIVILEGED AND "CONFIDENTIAL MATERIAL SUBJECT TO PROTECTIVE KMD:ss ORDER" enclosures cc: Robert L. Hollingshead, Esq. Very truly yours, ------- - KATHRYN M. DECKER (w/o encs.) UCC 075689 CURRICULUM VITAE DENIS B. FITZGERALD. M.D. 46 Fish Hawk Drive Middletown, N. J. 07748 Home Telephone: (908)671-5688 Date of Birth: July 18, 1953 Place of Birth: New York, N. Y. Marital Status: Married Office 365 Broad Street (First Floor) Red Bank, N. J. 07701 Office Telephone: (908) 530-8666 EDUCATION & CERTIFICATION Archbishop Molloy High School Jamaica, New York 1971 Fordham University Bronx, New York B.S. "summa cum laude" Biological Sciences in 1974 Phi Beta Kappa Medical Education state University of New York Downstate Medical Center College of - Medicine M.D. "cum laude" 1978 Postgraduate Medical Education Xnernship: Internal Medicine: St. Vincent's Hospital and Medical Center, New York, New York', July 1, 1978 - June 30, 1979 Residency: Internal Medicine: St. Vincent's Hospital and Medical Center, New York New York, July 1, 1979 - June 30, 1981 Chief Residency: Internal Medicine: St. Vincent's Hospital and Medical Center, New York, New York, July 1, 1981 - June 30, 1982 Fellowship: Medical Oncology: University of Rochester Medical Center, Strong Memorial Hospital, Rochester, New York, July 1, 1982 - June 30, 1984 Fellowship: Hematology: University of Rochester Medical Center, Strong Memorial Hospital, Rochester, New York, July 1, 1984 - June 30, 1985 UCC 075690 Page 2 Curriculum Vitae - Denis B. Fitzgerald, M.D. LICENSES AND DIPLOMAS Diplomate: National Board of Medical Examiners, 1979 New York State License to Practice Medicine, 1979 New Jersey State License to Practice Medicine, 1979 Certified, American Board of Internal Medicine, 1981 Certified, American Board of Medical Oncology, 1985 Certified, American Board of Hematology, 1986 Member: American College of Physicians Member: American Society of Clinical Oncology Member: Oncology Society of New Jersey HOSPITAL AFFILIATIONS Riverview Medical Center - Attending Physician Bayshore Community Hospital - Consultant PUBLICATIONS Fitzgerald, D. and Young, I. "Reversal of Pentamidine Induced Hypoglycemia with Oral Diazoxide." Journal of Tropical Medicine, 87: 15-19, 1984. George, T.K., Fitzgerald, D., et al "Long Term Survival in Limited Stage Small Cell Lung Carcinoma: Experience in Rochester, N. Y. from 1975 - 81." Cancer. 58: 1193-1198, 1986. Fitzgerald, Carcinoma: Cancer. 56: D. and Rosenthal, Complete Response 1023-1024, 1985. S. "Uterine Papillary Serous to Combination Chemotherapy." Fitzgerald, D., Rowe, J., Heal, J. "Leukapheresis for Control of Chronic Myelogenous Leukemia During Pregnancy." American Journal of Hematology. 22: 213-218, 1986. Storniolo, A.M., Fitzgerald, D-, Rowe, J., Olson, J. "Spontaneous Hemoperitoneuro in Two Patients with Myeloproliferative Disorders." Submitted for Publication, July, 1986. UCC 075691 fynwaitucev, cM-3)- 64 SEVENTH AVENUE ATLANTIC HIGHLAND. NEW JERSEY 07716 TELEPHONE (2011 291-0602 CURRICULUM VITEA Richard Commentucci, M.D. 36 Rimood Lane, Colts Neck, 842-6737 Married - wife Amy. Children - Lisa and Rita. New Jersey. 07722 (1) Family Practice and Sports Medicine Practice, N.Y., N.Y. 1973-1978 - Extensive experience in Urban Medical Problems (2) Family Practice and Sports Medicine Practice, Atlantic Highlands, N.J. 1979 - present. (3) N.Y. State Committee on Sports Medicine 1976-1978. (4) Medical Director Downtown Athletic Club 1976-1978 Home of the Heismann (5) Team Physician New Jersey Devils 1981-82, present. (6) National Hockey League Physicians Association 1981present . (7) Degree in Sports Medicine and Exercise Physiology, University of Moscow, Soviet Union 1971. (8) Team Physician Middletown North High School, Middletown N.J. 1979 - present - football. (9) School Physician, Henry Hudson High School, Highlands, N.J. 1979 - present. (10) School Physician, Bayshore Junior High School, Leonardo, N.J. 1979 - present. (11) District Medical Inspector, Middletown., N.>. School system dealing with county epldemicological problems, AIDS Measles, and Hepatitis. (12) Medical Director Century House, Red Bank, N.J. Alcohol and Substance Abuse Rehablitation Program. (13) Public Health Officer, Riverview Medical Cantor, Red Bank, N.J. (14) Attending Physician Riverview Medical Center, Red Bank, (15) T.V. Program February 1989, cohosted with Phil Rizzuto on Substance Abuse in Sports, Storer Cable T.V. N.J. (16) T.V. Interview Sports Channel 1988, hosted by Stan Fishier. (17) Radio Interview RE: Sports injuries 1987 -WMCA. (18) Lectured on AIDS, Alcohol, Cocaine, and Steroids. (19) P.B.A. Physician's Local 42, 1978 - present. (20) Member Monmouth County Police Chief Association. (21) Order of Secular Franciscans. (22) Fluent in English, French and Italian. A UCC 075693 i RICHARD COMMENTUCCI, M. D, 44 QRANO AVCNUK A. O. BOX IBB ATt^NTtC HIOHLANO*. NCff JCRSEY 0771* TtLCPMONK sst-ossa THE CHEMICAL ON A DAILY BASIS. The CHEMICAL IS KNOWN TO CAUSE ENLARGEMENT OF THE LIVER WHICH AFTER CHRONIC USE BECOMES PERMANENT. A POSSIBILITY EXISTS THAT HIS LIVER ABNORMALITY COULD BE TRACED TO HIS EXPOSURE TO POLYVINYL i CHLORIDE. I WOULD CONTACT A GASTROENTEROLOGIST OR A PHYSICIAN FAMILIAR WITH INDUSTRIAL MEDICINE >.. TO ASCERTAIN MORE INFORMATION REGARDING THE i' CONNECTION BETWEEN LIVER DISEASE AND POLY VINYL CHLORIOE. j i i (. NK YOU, OlUlttJLWJUO \ ; MMENTUCCI M.D. '. i *i i > j-;*!*!j v: : I RICHARD CQHMENTUCCI. M. O. 44 GRAND AVENUE P. O. aox 188 ATLANTIC HtCHLAND*. NEW JERSEY 07718 TCLCAhomk 281*0682 V INCENT JENN IAIGS 110 Highway 35 Midoletown,N.J. June 24,1986 Dear Sir, RE: Lawrence Colby The above patient has been treated by me since 1981 for Diabetes Mellitus, Allergies, and Hepatomegaly. His liver is enlarged to 4 finger breadthes below the costal major. He HAS ABNORMAL BLOOD TESTS REGARDING THV LIVER. The patient smokes 2-3 packs of cigarettes DAILY AND DRINKS AT LEAST A SIX-PACK OF BEER DAILY.He WORKED WITH POLYVINYL CHLORlOE FOR ' '' ! EIGHT YEARS BUT HAS NOT WORKED WITH THE