Ch. 1 – Closing statements of defense and plaintiff plus jury decision

AFTERNOON SESSION

WEDNESDAY. OCTOBER 5. 2005

(Thereupon, the following

proceedings were had out of the

presence of the jury.)

THE COURT: Did counsel have

an opportunity to look at the interrogatories

and the instructions?

MS. REID: I did, Your

Honor.

THE COURT: Are they still

with —

MR. AUGUST: I don’t know.

MS. REID: They look fine

to me.

THE COURT: If you want to

come up here and just take a look at them.

MR. AUGUST: I don’t

anticipate a problem.

(Thereupon, the following

proceedings were had in open court

and in the presence of the jury.)

THE COURT: Thank you, John.

Good afternoon, Ladies and Gentlemen. We’re

ready to resume closing argument.

Mr. Jones, you may make your closing

argument.

MR. JONES: Thank you very

much, Your Honor.

CLOSING ARGUMENT ON BEHALF OF DR. MADISON

MR. JONES: Good afternoon,

folks. Now, it’s not my place in this closing

argument to tell you what the facts are. You

have heard a lot of testimony. You’re going

to see the exhibits, and some of you have seen

blown up here. But what the facts are in this

case are what you will determine they are when

you go back into the deliberation room.

So, I’m not going to stand up here

and say, well, this is what the facts are,

this is what you should believe, and this is

what you shouldn’t believe. It’s also not my

place up here in closing argument to tell you

who you should believe and who you shouldn’t

believe. Again, you know, you heard from the

instructions, that’s really the job that a

jury is best suited for is to determine what

they have heard they believe and what they

have seen they believe.

So, my closing argument isn’t going

to be that. What I’m — what I’m going to try

to do as briefly as I can is give you a

framework. Actually, two frameworks to go

back into deliberations with and if you feel

it’s appropriate use these frameworks to sort

of see how the facts that you find fit.

One framework is the model I think

that Mr. August has been presenting in this

case and which he confirmed for us in his

closing argument and the other is a framework

that we tried to use in presenting Dr. Madison’s

defense. So, just to give you an idea of what

it is I’m going to try to do in the next few

minutes.

Everything has a context. I don’t

think — you know, Mr. August said a number of

times let’s use our common sense and, you

know, that’s true, but everything has a

context. Nothing stands alone or very few

things at least in this world stand on their

own. So, I’m going to try to give you some

context, too.

First, I want to thank you on behalf

of Dr. Madison and myself for being so

attentive. It has been a relatively long

trial. I have done this for a number of

years, and this is a relatively long one. It

has taken us longer to put this case on than I

think we anticipated originally, which taxes

your patience, and you have been great. So, I

want to thank you first.

Also, you know, in the course of any

trial, I have done this long enough that I may

have done something that you felt, I don’t

know, maybe wasn’t appropriate. You may have

seen me whispering or you may have seen

something going on. I want to first say if I

did anything that you felt was inappropriate,

please, that is something you should hold me

responsible for, not Dr. Madison. I have tried

not to do that. I’ve tried to be respectful

to everyone in the courtroom, but I don’t know

what you’re all thinking all the time. I

wouldn’t try to pretend that I do.

Dr. Madison you have seen testify, and

he is just a wonderful fellow. And I — he’s

lived with this case, with me for a number of

years, and I would hate to have something that

I may have done which you may take wrongly–

or rightly I suppose, as some bad reflection

on Dr. Madison. Because he’s testified a couple

of times in this case and you really ought to

judge him based upon his testimony and how he

presented himself to you in this case.

I do want to mention one thing; and

that is — I do have one thing to apologize

for. Dr. Smead, reading Dr. Smead’s discovery

deposition, that is nothing any lawyer,

believe me, relishes doing. It is — well, at

least having heard the instructions, maybe the

reading of a deposition is a little more

exciting than that, but it’s not much more

exciting than that. Unfortunately, as you

heard, Dr. Little testified — this case was

originally scheduled to be tried several weeks

ago and that trial date had to be changed and

I still thought I could get Dr. Smead in here

on Friday as the first witness because of his

trip, as you heard, to Guatemala this week for

his missionary work, and that didn’t work out.

So, I had to read his deposition. And that’s

one of those things — you know, you have seen

a number of, obviously, witnesses who took

time out of their practices or whatever else

they have to do and came and testified, and

that’s what we all prefer. But the

instructions are that you are to take the

testimony of a deposition or a video or a live

witness the same; and I know that can be

difficult when I have read a deposition.

Unfortunately, Dr. Smead like many experts

isn’t able to wait around a couple of days to

testify like Dr. Marcus did. He has obviously

other things going on. So, I do want to — I

do want to mention that. I would have liked

to have called Dr. Smead live for you to see

his testimony.

All right. So, the first issue is

standard of care. What’s the standard of

care? What a reasonable physician — in this

case, when I am representing Dr. Madison — a

reasonable emergency room physician would do

under the same or similar circumstances. And

it is important to understand that two

physicians have seen Mrs. Kamianka within this

two month period, and Mr. August is right, it

is important to us that two very qualified,

very well-experienced physicians in two

different specialties saw Mrs. Kamianka under

similar circumstances, not identical, but

similar circumstances, and came to the same

conclusion that this was not a cardiac

problem.

We also had Nurse Deitrick who — who

has testified, again, by reading, but she is a

nurse, and she had the same impression. So

not only do we have two different doctors in

two different specialties at two different

times, we also have a nurse who is — is

looking at Mrs. Kamianka — bless you — when

she came into the emergency room. And, and

you heard a nurse is, she’s responsible for

making an initial assessment, too; and if it’s

suspicious of a cardiac problem, she has

certain things to sort of put in place, which

she did not because, as she testified, she

didn’t think it was a cardiac problem.

The case that Mr. August is putting

on is that somehow, you know, once led down

the primrose path by Dr. Little saying that

this was bronchitis everybody just sort of

stopped in lockstep and got behind Dr. Little;

and when Dr. Little was wrong about that

diagnosis, which I don’t think he was, but

that’s their position, and so we all sort of

got behind him in the wrong diagnosis. And

that’s not what happened.

From the testimony in this case, it’s

clear that each of these folks did their own

complete assessment of what was going on with

Mrs. Kamianka when she was being seen. So,

whether it’s described as a chest tightness

and a cough and congestion or whether it’s

chest pressure with cough and other problems

or whether it’s a chest pain, however —

whatever words you want to use, the fact that

they each had to assess how to put that

complaint, which was one of a number of

complaints each time, into context, into the

context of the presentation, and a

presentation just isn’t an appearance of

somebody. A presentation involves looking at

the patient, doing a history, talking with the

patient, doing a physical examination

treating the patient and seeing how that

patient responds to treatment. It’s all of

that is a presentation.

Okay. So, it’s not just, oh, the

presentation, he looked okay she’s

nothing going on, nothing serious there.

That’s not what these doctors did, and it’s

not what the nurse did either.

These are the folks, the medical

folks who actually had that opportunity in

this relevant time period to sit down with

Mrs. Kamianka, to talk with her, to observe

her responses, to — to lay hands on her, to

touch her. The experts in these cases, it’s

impossible. They don’t have the patient in

front of them. They never do. That is a

limitation of every expert, no matter who

calls the expert. So, that’s why the

testimony of the doctors, an understanding

from their records and their testimony, what

happened is so important in these cases.

But because we have several people

who have seen Mrs. Kamianka during this

relevant period of time, they all came to

essentially the same conclusion about what was

going on for her, Mr. August has tried

mightily in his case to — to say everybody

just sort of, you know, got in lockstep behind

Dr. Little, and that’s not — not what the case

is really all about.

Let’s talk about what really medical

decision making is about because if we — take

a look at this. It’s very high tech here, I

know.

We have, in any presentation,

decision making going on by the medical

personnel, whether it’s a nurse or whether

it’s a doctor, but this — this sort of triad

of things that go into medical decision making

are that framework to talk about what a doctor

is doing in evaluating a patient. And I’m

going to deal with Dr. Madison and the emergency

room in this regard. They have a history

You have heard about a physical exam, and this

treatment response which becomes so important

in a case like this. These are the points

that play into medical decision making.

Mr. August has said in his closing,

and I think he’s tried to say in his opening

and-and through some of his witness,

that, you know, our defense is it’s medical

judgment and that medical judgment, you can’t

be questioned. I mean, because how can you

question a judgment? Well, of course, that’s

not what we have been doing, folks. There are

appropriate ways to evaluate patients and make

decisions within the medical treatment

context, and there are inappropriate ways, and

that’s what this case is about.

What the plaintiffs’ framework is

a very simple framework. Mr. August has said

this right upfront. I think it was clear from

the presentation of the case. Their framework

is chest pain get an EKG, period. There’s no

medical decision at all. There’s no reason he

didn’t do a history, do a physical exam, try

to treat the patient and see how she responds.

You just get the EKG. That’s the only thing

that means anything. And, you know, even Dr.

Florra and his brainless medicine, which he

agrees with me, and Mr. August just admitted,

that it’s a no-brainer according to Dr.

Florra. There was all this other discussion,

there’s all of this going on at the same time.

It’s not brainless medicine in any way.

You cannot remove a complaint from

the context of the patient’s presentation in

the emergency room. And that is Dr. — in a

very simple way, Dr. Madison’s model or

framework, that you have to put any complaint

within the context. No single complaint will

dictate the care. It’s just not that simple.

Mr. August and perhaps Dr. Florra

will try to make it that simple, but it is —

it is not. If there’s anything that you learn

in eight plus days of trial in a case like

this, I hope you take away that nothing is

that simple.

There’s a threshold question when a

patient has within their complaints presenting

to the emergency room something about chest

pain, tightness, pressure, however it’s

described, there is this threshold question:

and the threshold question is, is some other

complaint the patient had, something else they

have going on, does that explain the chest

pain or is the cause of the chest pain really

unclear? And, so, you have to take the

context to make that threshold question

answer.

It’s abundantly clear right off the

bat as to the fact that there’s no explanation

for this chest pain. Well, we would agree.

You get that history that there’s no other

explanation. What’s been going on? Nothing

I just, you know, have this sharp pain;

nothing has been going on; I mean, I — you

know, you do a physical examination, you do

you know, decide. You know, there’s no other

explanation for this, yeah, we will get an

EKG; I don’t think there’s any dispute about

that. I don’t think Dr. Madison has disputed

it. I don’t think Dr. Smead disputed it.

Nobody is going to dispute that. But that’s

not the presentation of Mrs. Kamianka to the

emergency room in the early morning hours of

November 6th of 2002.

A point in listening to Mr. August’s

closing which I think is really important is

the difference between cardiac disease —

again, you know, you’re going to see Mr.

August has already done this and his witnesses

have done it, and I anticipate he may do it

again in his opportunity to talk to you last

because he gets a chance to talk to you after

we sit down. He gets the last word. In an

attempt to make this such a simple case we

just sort of confuse the language of medicine.

Cardiac disease, the patient had cardiac

disease. The patient had cardiac ischemia.

The patient had a myocardial infarction. Each

one of those is a distinctly different medical

entity. And Mr. August in the presentation of

this case has tried to confuse that every

chance he gets because there is no doubt Mrs.

Kamianka had coronary artery disease, cardiac

disease, as do, unfortunately, it’s not a nice

thing to think about, but you heard the

testimony, most of us do. I think everybody

here is getting a little further in life,

maybe there’s a couple of people in their 20s

that hopefully don’t have much going on, but

most of us into our 20s and into our 30s and

into our 40s are developing coronary artery

disease, that plaque, that plaque, okay. So

that’s undisputed.

And, now, the plaintiffs and Mr.

August in his case wants to say, well, she had

cardiac disease, so you have to worry about

ischemia, so you have to worry about a

myocardial infarction. No, no, no. Almost

everybody of a certain age coming into the

emergency room a doctor knows the patient has

got some cardiac disease, some plaque

somewhere. And you heard so much testimony

about the underlying plaque, the

atherosclerotic disease, the coronary artery

disease that she had was minimum, was not

enough to impede flow, was not enough to cause

ischemia and that sort of thing.

So, the next step is cardiac

ischemia. That’s where our issue is in this

case. Was there enough of a decrease in blood

flow through the left anterior descending

artery when Mrs. Kamianka was in the emergency

room that morning that there was a decrease in

the amount of oxygenated blood getting to the

heart muscle itself? Was that causing

symptoms? That’s cardiac ischemia. Okay?

The disease — the cardiac disease

has gotten so bad that now we have this

occlusion causing decreased blood flow, less

oxygen to the muscle, pain. Okay?

The last is a myocardial infarction,

and that is the complete disconnect of all

oxygenated blood getting to a particular part

of the heart muscle. That’s sort of the end

stage of things. So, you’ve got to be very

careful. It’s not that simple. It doesn’t

matter what Mr. August says about how simple a

case this is. It is not that simple. You’ve

got to be paying very close attention to how

the language of medicine is being used in a

case like this. Because there is no dispute

that Mrs. Kamianka had cardiac disease.

There is a question about whether or

not she had coronary ischemia during the

presentation at the emergency room. And

there’s a big question about what was going on

as far as any myocardial infarctions. I’m

going to get back to that a little bit, but

you have to understand that to sort of put a

— understand how information is coming to you

and how it’s being presented.

Let’s see. I went back to the office

last night and, and tried to figure out a way

to talk about this case in terms of this

framework that Mr. August has for Mr.

Kamianka’s case. It’s simple. Chest pain,

you get an EKG, and how he addresses all of

 the actual presentation of this witness, the

facts of the presentation of this witness

versus what Dr. Madison has done and tried to do

it in a — in a fairly straightforward and,

and organized way.

So if we’re going to — if we are

going to concentrate on the chest pain, that’s

it; this lady came in with chest pain. That’s

her overriding symptom. I don’t think that’s

true. But let’s assume that that is the case.

So, the first thing I say is if you focus on

the chest pain as the complaint. So, we will

accept that for this argument. How do you add

up the presentation? How does the plaintiff,

how does Mr. August on behalf of Mr. Kamianka

do it? He uses Dr. Florra’s equation, the

brainless medicine equation, chest pain equals

EKG. That’s how he does it.

Why does he do that? Because chest

pain with anyone symptom does not eliminate

the possibility of ischemia. How often during

the presentation of the plaintiffs’ case did

Mr. August ask a Witness, Doctor, wouldn’t you

agree that having chest pain in a 39-year-old

female does not eliminate the possibility of

this coronary ischemia? Well, of course not.

You can — you can be a 39-year-old female and

have coronary artery ischemia from underlying

coronary artery disease. Nobody disputed

that. So, Mr. August gets up and says, well,

you’d admit that chest pain with bronchitis

a month ago as history, that doesn’t eliminate

the possibility of ischemia, does it? Well,

of course not on its own the — taking chest

pain and one bit of history; no.

And, he says, oh, well, chest pain

plus improvement with that antibiotic

treatment after that bronchitis a month ago,

that doesn’t eliminate the possibility of

ischemia, does it? No, you’re right, Mr.

August, it does not. Nor does the worsening

when you get off the antibiotics if you still

got chest pain. Well You know if you talk

about it, no, that alone, that is not going to

eliminate it.

Or the fact that the patient has got

scoliosis seen on the x-ray; no, you can have

scoliosis and you can have coronary artery

disease with ischemia, Mr. August. Or, you

know, you can have a cough causing chest pain

and you can still have ischemia, can’t you;

well, yes, if you just look at that one thing,

yeah, you can still have it; it would be

unusual, but you could.

            Post tussive vomiting, the same with

the yellowish sputum, the absence of left arm

pain, the absence with sweating, the absence

with worsening with exertion, you take anyone

of those things and say, well, if you have got

chest pain and one of those things, wouldn’t

you agree that you haven’t eliminated or ruled

out the possibility of ischemia; and everybody

who is honest is going to say, you know,

you’re right, you’re right, Mr. August. So,

that’s the plaintiffs’ case.

Let’s take each one of these things

one at a time, connect them with chest pain as

the only complaint and say, yeah, that doesn’t

eliminate ischemia. You’ve got a duty to

eliminate ischemia when that patient is in the

emergency room, Doctor; you’re negligent;

you’re at fault for this lady dying 12 hours

later. That’s the simple case that Mr. August

is trying to convince you of.

He does the same thing when you talk

about — explaining away the physical exam.

If you got chest pain and the vital signs are

normal that doesn’t eliminate ischemia; well,

you know, you’re right. You can have normal

vital signs and still have ischemia. Oh, and

the chest tenderness on — on feeling the

chest wall that doesn’t eliminate. I think

he — from Rosen’s they put up like 15 percent

of patients can still have chest tenderness,

you’re right. I’m not disputing that. Or

wheezes or the normal heart sounds or the

normal chest x-ray. Absolutely. Take anyone

of those individually with chest pain and

you’re not going to eliminate the possibility

of ischemia.

You know, you get down then to the

treatment response for this case. It’s

undisputed, even Dr. Florra admitted this, the

lungs improved with the aerosol treatment.

Well, you know, a lung problem isn’t going to

improve any breathing if they’ve got an

underlying coronary ischemia causing the

patient’s problem. But, nonetheless, the lung

improved. Can you have lung improvement and

still end up and have ischemia

Sure, absolutely. The same with pain

improving with Tylenol. Tylenol doesn’t

address coronary pain. You heard that over

and over again. So, yeah, sure, I mean, you

know the pain is responding to the Tylenol

but, you know, can I say that — that because

she had chest pain and Tylenol response that

there’s no ischemia? No, I can’t say that.

And, and, you know, Dr. Florra got a

little silly a couple of times. And at one

point, I actually had said I didn’t appreciate

him being silly, but there was one thing that

I thought was sort of silly: He agreed with

me. And that is, in what he is saying, in the

testimony he’s giving you, that he’s asking

you to take back to that deliberation room and

talk about is this — all of this talk about

isn’t this consistent with coronary artery

disease and coronary ischemia, isn’t that

consistent with it, and I said, well, Doctor,

the way you are using that term, I stubbed my

toe is consistent with a coronary ischemia.

He said, oh, yes, it is. Oh, yes, it is.

That’s because I can stub my toe, walk into

the emergency room and have coronary ischemia

that — you know, so you want to play that

game with the stakes involved in this case, I

think it’s insulting.

I told you I wouldn’t tell you my

opinion about credibility of witnesses. I

just violated my own rule. That testimony

speaks volumes about what Dr. Florra’s

approach to this case is.

What does Dr. Madison say? What is his

case? It’s not as simple a case, folks. I,

I — you know, I wish — I wish a very simple

case could be created. I don’t create the

cases. This is the facts of the case. What’s

his equation, that is, Dr. Madison’s? You take

the history, the physical exam, and the

treatment response and you make a reasonable

medical decision making the diagnosis of

what’s going on with the patient. S~—w.bat'”–

you do is you take, okay, we will start — we

are still playing this game with chest pain is

the only thing we have in this case. Okay,

chest pain, okay, then let’s add things.

Well, let’s add everything. Let’s add

everything else we have coming into this case

because this is the contest of this

pain.

It’s not just the patient coming in

with chest pain. She’s 39 years old,

39-year-old female. Nobody disputed that

39-year old females are at much less risk for

coronary artery disease and ischemia and

myocardial infarctions, all three of those

than older women and men. Bronchitis a month

ago. That’s a relevant piece of history.

Nobody disputed that that’s a relevant piece

of history. She improved with antibiotics

from that bronchitis. Everybody agrees that,

you know, if you’re having problems and you’re

given antibiotics and you improve that’s not

coronary artery disease.

Worsening when she went off the

antibiotics. When she finished those

antibiotics, the cough and the congestion came

back. The scoliosis, you know, Mr. August

seems to think, well, the patient never

complained of back pain or any other problem

in her upper back that we can ever find.

Well, you know, that’s true; I don’t see

anything in there. Although, I don’t think

that I have any evidence that she had any

prior history of coughing that hard,

vomiting — I mean, she did vomit once with a

cough before. You know, every — every one of

these incidence has its own little life. And

how hard somebody strains and what you may

pull or what may be aggravated by it is an

issue. We’re not hanging our case on

scoliosis in the ER. It’s one of the many

things that are involved in this presentation.

Cough causes the chest pain. You

know, short of calling Dr. Madison a liar,

that’s not an issue. The doctor’s dictation,

she indicates, not I am assuming from her

prior bronchitis history from Dr. Little’s

office, no. She indicates that when she

coughs — when she coughs, she gets a very

sharp pain both in the front of the chest and

the back. Cough is causing this pain. It’s a

severe pain. It’s enough to bring her to the

emergency room because her doctor’s office

isn’t open yet in the morning, she’s been

throwing up with it, yeah. We don’t dispute

any of that. But to dispute that she had a

cough is inconceivable to me and that the

cough was causing this pain. You are calling

Dr. Madison a liar. And you’re not calling him

a liar today on the stand when he’s trying to

defend his reputation. You’re calling him a

liar back at 6:30 in the morning on November

6th, 2002, because that’s when that was

dictated.

Post tussive vomiting. You know,

witnesses came in here and said, well, it

wasn’t post tussive vomiting. It’s vomiting

because of chest pain. Well, Dr. Madison was

there talking to Mrs. Kamianka, asking her

questions about what’s going on, and she

indicated that she was coughing so hard she

threw up. That’s post tussive vomiting.

That’s not I was so — I had so much pain I

got nauseous and threw up. There’s a world of

difference.

Yellowish sputum. Everybody agrees

that yellowish sputum is not an indication of

underlying coronary artery disease.

Indication, not consistent With, of course,

God knows we all can have yellowish sputum and

still have coronary ischemia, but it’s not an

indication of coronary artery disease, but she

had it.

These absent findings, absent left

arm pain, absent sweating, absent worsening

with exertion, those are the things that are

the typical presentation for coronary artery

disease that would — that would raise the red

flag. Oh, you know, this chest pain has got

some other things going on. And not only is

this, you know, sort of by, we know this by

absence. We know by an absolute fact from

what even Mr. Kamianka has testified to she

did not have these things. She didn’t have

any of this. And, in fact, not only absent

worsening with exertion; I mean, there was

some substantial exertion in this case. One

part of which was not known by Dr. Madison

because there wasn’t that kind of questioning

about it, what she had been doing the night

before with her husband, but we do know that

she drove herself to the hospital; we know

that she walked in; we know that after talking

with Nurse Deitrick and doing triage she

walked back to the room; we know she walked to

and from radiology to get a chest film; and

not once did she complain, man, that really

wore me out. You know, my chest pain is a lot

worse when I’m walking around. That’s

exertion.

And Mr. August and his experts want

to tell you, you know, not only does she have

coronary artery disease, she’s got ischemia,

okay. Remember, we’re going onto the next

one. Ischemia, or maybe even an MI, maybe

even myocardial infarction, a total occlusion

at this time, and she has absolutely no

evidence of worsening. Put more demand on the

heart, if that blood flow is, is being

compromised, why isn’t she having a worsening

of chest pain if the chest pain is from that

problem?

The physical exam, the chest

tenderness, that’s a musculoskeletal response.

The normal vital signs. You know, most people

who are in significant coronary ischemia or MI

don’t have normal vital signs. That’s the

evidence in the case. She had wheezes.

There’s no disputing that she had wheezes.

You don’t get wheezes from coronary artery

disease. You don’t get wheezes from coronary

artery ischemia. You don’t get wheezes from

having an MI. You get wheezes because you

have an upper respiratory illness.

Normal heart sounds. You know,

you’re right, you can’t listen to the heart

and say, oh, I listened to the heart, I can

hear coronary artery disease. Well, of course

not. You can’t hear the plaque, okay.

However, if you have got a plaque as

significant enough to cause a significant

amount of ischemia to cause this kind of chest

pain, the heart gets irritated — you heard

the testimony — you can very well have

abnormal heart sounds, abnormal rhythms. You

don’t have to, but you can.

Normal chest x-ray. You can’t take

an x-ray of the heart and say, oh, I see

coronary artery disease in that x-ray. No,

you can’t. But if you have had coronary

ischemia, significant coronary ischemia or an

MI long enough, you heard the testimony about

congestive heart failure, the pumping of the

heart isn’t working right, fluid backs up in

the lungs and you get changes on the chest

film and that would raise a suspicion of

what’s going on with the heart. That wasn’t

there. That’s not in this case. And then

what — I’m not sure we really made that clear

in this case and then she had this response to

treatment. If she is having coronary artery

ischemia or an MI getting an aerosol breathing

treatment is not going to improve her.

It’s not going to improve her pain.

. If her lung function is normal,

getting an aerosol treatment isn’t going to

cause an improvement in the lung function; and

even Dr. Florra admitted she had an

improvement in her lung function with the

aerosol treatment. Why? Well, according to

the plaintiff, there’s nothing wrong with her

lungs. She has got no airway illness. Why

would there be an improvement? And pain

improved with Tylenol. Well, you know, she

took some Motrin at home and the pain didn’t

really improve, don’t know how much. She took

Tylenol and pain is improving when she’s

coughing. That’s why we get that down from

eight over ten, whatever that means. Dr.

Madison was talking about the subjective nature

of pain and what’s right for you may not be

eight for the next person or for me, but you

get sort of this idea, the important part is

she’s improving.

If the coronary artery ischemia —

there’s significant coronary artery ischemia

or an MI, Tylenol isn’t going to help that

pain, folks. Everybody who was asked that

question admitted as much.

So, I wish that this analysis was as

simple as Mr. August’ and his experts looking

at chest pain and saying, well, it doesn’t

really matter, any of this other stuff,

because any of these other things are

consistent with coronary artery disease or

coronary artery ischemia. How can you win?

mean, how can you attack an opinion like that?

It’s just — it’s brainless.

Dr. Madison and Dr. Smead in their

testimony as emergency room physicians were

telling you in this triad of medical treatment,

decision making, history, physical, treatment,

response, when you look at the full picture

and you take the complaint of chest pain in

context, this is not coronary ischemia. There

is no clinical manifestation. Dr. Madison said

a couple times there was no clinical

manifestation of that. Could she have it;

yes. We have never disputed that she could

have it. But a doctor has to have some

clinical manifestation of that to make a

diagnosis, and she didn’t.

            Diagnosis of bronchitis under these

circumstances is fully appropriate, certainly

within the standard of care diagnosis of this

case. The fact that Mrs. Kamianka passed away

12 hours after she was sent home from the

emergency room bears no relevance to this

analysis that Dr. Madison had. Dr. Madison did

not have the autopsy to work from. And Mr.

August today still says how can you say this

is reasonable decision making when she died 12

hours later? He still wants to say, look back

at what happened, how can you say that’s

reasonable? He gives — he gives lip service

to don’t look at the standard of care issues

retrospectively, but he still does, and he’s

still insinuating that you should, and that’s

just not fair, and it’s not the law.

Risk factors. You know, when this

case started in opening statement, Mr. August

said Mrs. Kamianka had five known and

understood risk factors for coronary artery

disease when she was seen by Dr. Little and Dr.

Madison in her presentation — five. There was

smoking. There was family history. There was

increased cholesterol. There was obesity.

Then there was birth control pills. What

happened to those five risk factors by the end

of this case, folks?

Well, Dr. Florra said, well, you

know, the whole thing about birth control

pills, you know, that’s — we all understand

the veins in the legs, that’s, you know, one

thing, but back in 2002, it wasn’t really

understood that there was any increased risk

with birth control pills. He’s not critical

of that. This — this whole cholesterol

business, 204, which is I think four or five

points above the normal range for a patient,

which was non-fasting and all these other

things that you have heard about, I mean, it’s

not a significant risk factor in this case.

It’s certainly nothing that Dr. Madison could

have gotten from the patient according to the

plaintiffs’ case.

The obesity. You know, there’s this

whole thing. She was, as I said in opening

statement, she’s a little overweight. There’s

no doubt about that. But obesity means a very

specific thing to an emergency room physician

in evaluating a patient. And, you know, there was

isn’t playing a part in this evaluation at

all. So, what are we left with as far as risk

factors? We have smoking. Well, we can get

rid of smoking. Smoking is not really focused

on by the plaintiff in this case because

smoking is a risk factor for pretty much

everything. Unfortunately, too many people,

and they’re all at risk for — you name it

including bronchitis. They have more

respiratory illnesses as well as being at risk

for coronary artery disease. So, what does it

come down to? It comes down to this family

history and whether Dr. Madison was obligated to

ask a family history with this presentation.

Well, you know, nobody said that you

ask a family history under all circumstances.

Dr. Florra is the one that said you got to ask

family history in the emergency room setting

with a patient who presents with chest pain.

That’s because this whole thing is chest pain,

EKG, you know, it doesn’t matter the context;

it doesn’t matter what else is going on, the

history, the physical exam, how she’s

responding to treatment, none of that makes a

darn bit of difference, so chest pain, you got

to do all of this; and that’s not true.

Remember the Rosen’s that I confronted him

with. It’s talking about a brief history and

a — and a — and a brief exam. I mean, this

is not the, the 20 minute time to sit down

with your family doctor and go through

everything. This is an emergency room

presentation.

But if we look at the family history

even closer, I mean, I’m not contesting that

her brother — a brother died at the age of 32

of coronary artery disease and an MI. I will

accept that. We have no evidence otherwise.

I mean, that’s fine. We don’t have any

evidence to confirm it, but we have no

evidence otherwise, so we accept it. But

that’s one brother of four other siblings.

She had neither mother nor father with this

problem.

            It’s a relatively – and Dr. Little

was talking about this primarily because he’s

the one that got that history. It’s a

relative risk factor and no pun intended

there. It’s just — it’s — you know, if she

had both brothers or both of her parents,

Proximate cause. Again, I said in

then, it’s — those risks multiply in family

history. What is even most telling about this

is from the pathology. We know for an

absolute fact, everybody agrees, Mrs. Kamianka

had about the amount of coronary artery

disease you would expect of a woman her age.

So, the plaintiff, Mr. August, he wants to

say, whoa, brother died at the age of 32, you

know, bells, alarms, everybody’s got — this

lady has got to have coronary artery disease

significant to be causing ischemia in her and,

man, we all have got to jump through hoops

about this. When, in fact, one of the

absolute undisputable facts that we have is

that the plaque that she had — and that’s

what her risk Factor is for, that plaque

development, no matter what it was, she didn’t

have a really significant amount of it, no

more than you would expect of any other

39-year-old woman.

So, you know — again, you’ve got to

take all of this and put it in the appropriate

context in analyzing all of the issues in this

case.

            Proximate cause. Again, I said in

opening statement I don’t really understand

the testimony about the pathology. I was very

upfront about it. I said that Dr. Madison and I

are not going to contest the pathology in this

case. I didn’t call a pathologist. You know,

I asked very few questions of the pathologists

because I don’t really, there — they’re —

they clearly have different opinions about

things that I don’t fully understand. So, you

know, to put it on that, very simple — you

know, I don’t have the burden of proof of

that. Mr. August does.

As far as I’m concerned the

pathology in this case is something that, you

know, hopefully, together, as a group in

deliberations, you can figure it out. But

what I do know is that Dr. Brains testified,

when I was asking her questions, and I had a

diagram that I did on the grease board which

can’t show you. We had to erase it to put Dr.

Blood’s numbers up for you, so I had to get it

erased. But she had said that, okay, we got

this 20 percent or so minimal amount of

coronary artery disease, but it’s not enough

to cause symptoms, That’s not the kind, you

know, you need to have 65 to 70 percent or so

to be causing symptoms.

She said at the time of Mrs.

Kamianka’s death 12 hours later there was this

thrombus, this clot, that occluded the artery

completely. And she said, as did Dr. Smead

from his testimony, that that can happen like

very quickly, okay, or it can happen over a

period of hours. And, so, the question is

from Dr. Brains’s testimony, as much as I can

understand, it’s an open issue as to how much

of her coronary artery was or was not occluded

when she was in the emergency room. I’ll

leave it to you to try to figure out from Dr.

Brains’s testimony compared to Dr. Flocker’s

and what you look at in this case, whether you

can figure that out.

But I do find it interesting that Mr.

August is, you know, calling Dr. Flocker sort

of this hired gun, big expense, big named guy

from New York on his defense of Dr. Little, but

all of a sudden Dr. Flocker is some kind of

cardiac pathology genius when it comes to, you

know, what he said about what was going on in

the ER that day about the thrombus. I mean,

how can you play both ends of that game?

Okay, well, okay, yeah, he’s right on that.

He’s a hired whore for Dr. Little, but, boy,

he’s a genius when it comes to what he says

about what is going on in the ER.

The other thing that I don’t

understand, and you heard the testimony, you

may be able to figure it out, is Dr. Flocker

said that he thought that there was a

myocardial infarction — remember, that’s the

very end of a process — one or two days

before she died. If she was having a total

occlusion of — of her coronary artery to

cause cell death, and chest pain is a

manifestation of that, then she should have

had chest pain for more than a day or two from

this myocardial infarction. And what we have

as the earliest complaint of any chest pain

was the evening before, certainly less than 24

hours. I mean, even looking at it in the

broadest sense, I cannot reconcile that

particular opinion with the facts in the case.

So, again, the point for Dr. Madison’s

defense though is it doesn’t really matter

whether or not she had some disease, whether

she had some development of thrombus of

whatever degree at the time she was in the

emergency room. The issue is was it

clinically manifesting itself that it was

there. The case is it wasn’t. She wasn’t

having the symptoms you would expect to see of

somebody with that problem, and that’s a

standard of care issue, looking at it

prospectively from Dr. Madison’s point of view

that morning.

Very briefly, I, I want thank you

again for all the attention in this case. It

hasn’t been easy. I have tried to not

obfuscate this case. If I have done that, it

was unintentional. But the facts are what you

folks are going to find them to be when you go

back.

You got the law with you when you go

back there to apply whatever facts you find.

Dr. Madison has walked into this trial. He

knows, you know, we are in a situation where a

patient died within 12 hours of him having

seen her in the emergency room. He knows how

difficult that can be for jurors to say, gee,

didn’t something have to be wrong, and yet Dr.

Madison has been steadfast about defending this

case. He has been here every day. He has

listened as carefully as we all can to the

testimony in this case, and he has confidence,

as do I, that when you go back into the

deliberation room, have a chance to talk to

each other about all of your impressions,

about what went on in this case and what was

said, have a chance to look at the exhibits in

this case, that you will be able to come back

into this courtroom when you are done and give

Dr. Madison the defense verdict that he should

get in this case. And, again, thank you very

much

Thank you, Your Honor. I am done.

THE COURT: Thank you, Mr.

Jones, on behalf of Dr. Madison.

The defense on behalf of Dr. Little (the PCP)

may deliver your closing argument.

MR. KANE: Thank you, Your

Honor.

CLOSING ARGUMENT ON BEHALF OF DR. LITTLE (the PCP)

Good afternoon, Ladies and Gentlemen.

Truth. That’s what we are here to find.

That’s the purpose of this whole process, and

we want you to find the truth.

And in order to find the truth, you

have to consider all of the facts. I will

tell you I have tried very hard to bring you

all the facts so that you can find the truth.

know Chris who has helped me try this case

has tried hard to bring you all of the facts.

try to do that for a couple reasons. First

of all, because I don’t want to be accused of

obfuscating, which until a few minutes ago I

don’t think I ever knew what it meant. Now

that I heard what it meant, I don’t think it

was very nice to say. That wasn’t nice. I’m

not trying to do that. I’m not trying to

confuse or complicate these issues.

The truth is I want you to see the

truth. Let me tell you why. When I was a

young lawyer, which seems like a long time ago

now, I was getting ready to try I think my

second case — I think I lost the first one.

As I was getting ready for the second one, I

said I think I better go to somebody and find

out what I am doing wrong. So, I went to a

old lawyer in our office. And I said to him,

I’m getting ready to try this case, here’s

what it’s about, how do I Win, what do I do,

hoping to hear from him the secrets of

cross-examination or the brilliant techniques

that you use to win a case. You know what he

told me? He said, you know, Tom, what’s the

truth of the matter? I said to him what do

you mean? He said, Tom, if you find out what

the truth of the matter is, you find out what

actually happened, what the medical truths

are, what the science of medicine shows us

about the case, and you show that to the jury.

They will get it right. They will find the

truth, and you will win the case. And ¥you

know what, he was right. And that’s why I

have tried very hard in this case not to

overstate, not to misstate and not to take

things out of context. Because if you look at

the facts of this case, you will find the

truth.

The truth-Dr. Little met the

standard of care; and he met the standard of

care because when she came in on September

5th, 2002, she didn’t look like she was having

a heart attack. Her presentation was one, if

you look at it in total, of a patient who is

suffering from bronchitis. And she looked

like she was suffering from bronchitis because

she was. She wasn’t having a heart attack,

and working her up for cardiac disease

wouldn’t have produced a diagnosis.

And, Ladies and Gentlemen, that is

the truth of the matter.

Now, I want to go through the issues

in this case. I want to highlight the truth.

At times I want to contrast it with how the

picture has been painted by the plaintiffs in

this case. So let’s look at it and let’s not

— I know everybody is sick of these records.

And if I could ask you to raise your hands and

ask if you need to see it again, I would, but

I can’t. And because I’ve got an obligation

to defend Dr. Little, I feel obligated to go

through it again, but let’s look at facts of

this case, not picking out the first two

things here, but looking at the total exchange

between Dr. Little in his office and Anna

Kamianka. What did he learn? He learned that

she had chest pain, that she was congested and

coughing up yellow sputum and hadn’t slept

last night.

She wanted to be seen that day, but

she didn’t want to come until after work.

When she got there, she said that her chest

was tight, but there was cough with phlegm,

and she had had it for two or three days.

He then went in and saw her himself,

and he learned that she had back pain

yesterday; she didn’t think anything of it.

She said it got worse — but she had tightness

in her chest and that it was worse when she

coughed. She also told him that her chest

pain wasn’t exertional, which means it didn’t

get worse when she was exerting herself. He

did a physical examination.

And Ladies and Gentlemen, I talked

Dr. Little about the examination of the heart,

and I tried very hard to not take things out

of context. If you will remember, before I

asked him about this, I said, will this

listening to the heart tell you anything about

whether this patient has coronary artery

disease, meaning whether or not there was

plaque forming in the vessel, and his answer

was, no, it doesn’t help at all with that.

My follow up question was if she’s

having an acute coronary event, she’s actually

having a heart attack, can it help sometimes

show whether there’s a heart attack or not.

His answer was, yes, it can help under those

circumstances. And — and, again, I’m

reminding you of that because there was a

suggestion that somehow, you know, we were

trying to say that she didn’t have coronary

artery disease because she didn’t have

abnormal heart sounds, and that’s not what I

said, and that’s not the context that I raised

that.

Ladies and Gentlemen, at the end of

this visit Dr. Little diagnosed her with

bronchitis, and he did that because coronary

artery disease doesn’t get worse when you

cough and coronary artery disease gets worse

when you exert yourself. If you’re having a

heart attack, that heart is being deprived of

blood, it gets worse when you move around and

you exercise and you do things like go to work

and act as a cashier and a waitress,

delivering things and taking people to their

seats. It wasn’t exertional. And if it was

exertional, that would point you to cardiac

disease, but it wasn’t.

He also learned she was 39, and she

was a woman. He knew those things. And we

all know — in fact, plaintiffs’ experts have

agreed that it’s unusual, it’s less likely in

young people who are women; and Ladies and

Gentlemen, everyone agrees that coronary

artery disease, cardiac ischemia, it doesn’t

make you cough up phlegm. Bronchitis does.

The truth of the matter is this lady had

bronchitis and Dr. Little made the appropriate

diagnosis.

Now, because he’s a good and careful

doctor he wrote himself a reminder. If she

doesn’t get better, if these problems get

worse, if they change, if they persist or

recur, consider doing a stress test, because

we think we have a diagnosis, we’re very

comfortable with it, but if it doesn’t resolve

with treatment, then we need to continue

thinking.

You also heard testimony he

considered a number of life-threatening

things, all of which he ruled out. Lung

cancer, pulmonary embolism, a thoracic

aneurysm. He ruled all of those things out

with just history and physical examination.

And the truth is that’s how medicine is

practiced. You cannot work up, and there is

no reason to work up every potentially

life-threatening thing even if you don’t think

it’s there. You just don’t do it. That’s not

how medicine is practiced.

Now, I want to contrast the picture

of this woman who comes in with a productive

cough, that hurts more when she coughs, it’s

not exertional, with the picture that seems to

have been painted in plaintiffs’ opening, if

you can remember back that far. Remember what

he talked about. He started this whole

discussion about this visit off by talking

about how — and he wasn’t there. He wasn’t

on the phone. But he said when she called she

said she really, really, really needed to be

seen that day. He talked about this

overwhelming sense of urgency to get seen.

Well, let’s put it into context to be

fair to the facts of this case. She did have

some sense of urgency, but it was to be seen

that day. She wasn’t a patient who came in

clutching her chest dying from a heart attack.

She was a lady who said, I was up last night

coughing; I am going to work; I don’t want to

come in until I am done with work, but I do

want to be seen today; and that’s the truth.

That’s the presentation.

It wasn’t just chest pain. It was

all of these things. And he keeps talking

about this presentation like it was chest pain

and that was her complaint. She had a

multitude of complaints, and that’s what

doctors do is they look at the multitude of

complaints and they make a judgment about what

they think it is. And if they have a

diagnosis like bronchitis that explains all of

those things, you don’t work up some remote

problem.

He also told you — Mr. Jones stole

my thunder — remember in opening statement

she came in with five risk factors. The truth

is — you heard his experts; we have heard all

the testimony. His own experts, Dr. Florra,

Dr. Morgan, they both said she

really has two, smoking and family history.

The other thing if you’ll remember and it

struck me as odd when he said it, he got to

the close of his opening statement, Ladies and

Gentlemen, if it walks like a duck, quacks

like a duck that it must be a duck, and I

think his point was this is just — this is,

like Mr. Jones pointed out, this is a

no-brainer. Well, Ladies and Gentlemen his

own expert, Dr. Morgan, who he

chose to be his expert, who he invited and

paid to come to the courtroom to testify,

said, in truth, she probably did have

bronchitis and this was an atypical — meaning

not typical presentation for cardiac disease,

and it went from being this no-brainer where

it’s walking and quacking like a duck to being

an atypical presentation. And did you see how

things changed over the course of the week?

Then all of a sudden it became, well, there’s

two things going on at once. She may have had

bronchitis, but you should have been thinking

cardiac anyway.

Ladies and Gentlemen, the truth of

this case is that Dr. Morgan in

part was right. This was atypical. It was

atypical because it wasn’t a heart attack.

Now, as it relates to the standard of

care, plaintiffs really only have one

criticism. Their criticism was he failed to

more strongly consider cardiac disease, and he

failed to do an EKG, and he failed to do a

stress test. Those are the criticisms you

have heard from the plaintiffs. But, despite

the fact that his experts, the ones that he

must — and you heard the jury instructions —

he has to prove this case through expert

testimony. He can’t just make something up or

throw it out there and expect you to follow

it. It has to come from an expert. I want to

talk about what his expert said.

Failure to do an EKG, failure to do a

stress test. But there was a lot of

discussion of other things, and I want to talk

about them. First of all, there was all this

communication to the patient, what should the

patient be told, was the patient told enough.

Remember what Dr. Morgan said.

He had no criticisms of the communication

given to this patient.

Mr. August’ expert doesn’t have a

problem with what this patient was told. Only

Mr. August. And that’s not good enough to

reach a verdict against Dr. Little.

The blood pressure not being taken.

Well, first after all, the blood pressure was

taken. You heard Dr. Little. If it wasn’t on

the chart, he takes it himself. Because it’s

usually on the chart, he doesn’t think~ to

record it when he dictates, but he said I

would have checked the blood pressure. That’s

what I did, and it would have been normal.

The second thing to think about, Ladies and

Gentlemen, is what did Dr. Morgan

say about the blood pressure, what did Dr.

Marcus say? Nothing. No criticisms of a

failure to do a blood pressure. And the

second part of it — and keep in mind, to

prove this case he has to prove that there was

a deviation from the standard of care, and he

has to prove that that deviation caused the

injury in this case.

There is not a single piece of

testimony from any Witness, even any

hypothetical question, that doing a blood

pressure would have resulted in a diagnosis of

anything. There is no testimony to support

any criticism of the failure to do a blood

pressure in this case.

Another issue that we spent tons of

time on that goes absolutely nowhere is did

this patient get a letter after her first

visit about the cholesterol level of 204. Do

you remember how much time Mr. August spent

talking about this with Dr. Little? Try and

think of how much time he spent with Dr.

Morgan talking about it. You’re

going to think about it for a long time

because there was none. The truth is Dr.

Morgan came in here and had no

criticisms of the failure of this patient to

get a letter.

And the other thing that’s not fair

about that, to put it in the context, whether

she got a letter or not, there is proof in

this chart from, I think it’s May 13th of ’02

where she was reoffered labs. And Dr. Little

told you, and common sense will tell you, that

of course he discussed the labs that were done

the last time and encouraged her to repeat

them because of the abnormality.

            There is also a question of whether

she should have been told, you know, about

maybe he’s considering a stress test. Ladies

and Gentlemen, the truth is you don’t tell the

patient every single thing that goes through

your mind. He didn’t tell her that you might

have a pulmonary embolism when he’s

comfortable that you don’t. You tell them

what you think they have. You give them

instructions, if you don’t get better, come

back in three to five days; if this gets

worse, come back sooner. And you expect that

the patient will do that.

Now, there’s been this whole

suggestion that somehow we have said the

patient doesn’t have the right to know. Of

course the patient does. If the patient says,

Doctor, I know you said this is bronchitis,

but is there anything else that it might be

that I should look out for, you tell her. Dr.

Little wasn’t trying to hold anything back from

her.

He’s being a good doctor. He’s a

careful doctor. You heard from Mr. Kamianka.

He’s the kind of guy that took time, answered

questions. The Kamiankas liked him.

Ladies and Gentlemen, let’s talk

about the second issue whether she was having

a heart attack, whether tests would have

resulted in the diagnosis of treatable

coronary artery disease or treatable cardiac

ischemic disease. Ladies and Gentlemen, the

truth of this case is — and, and I think it’s

overwhelming — she was not. And again, it

can be disorienting. I admit that when I

first opened this case it was disorienting.

So, I’ll put it up. This is not an exhibit.

It will not go back with you. So, I’ll give

it to you one more time to look at. Almost

nine full weeks went between these two visits.

And the truth is — and I called Dr. Flocker.

He is a wonderful doctor, incredibly

well-trained, and he testified that based on

his review of the slides — and I’ll remind

you, I’m the only one who actually showed you

the slides. I’m the only one who actually

brought you a cardiac pathologist who

specializes in looking at cardiac slides. And

he said the oldest possible time that there is

evidence of an infarct, evidence that there

was ischemic injury to this woman’s heart, the

oldest that it’s possibly there is six weeks.

He thinks the oldest part was within four to

six weeks, and then he talked about some

recent changes, the ones immediately prior to

her death.

The other testimony you heard was

from Dr. Brains. And she says that there may

be injury that’s greater than six weeks or

greater than four weeks. I’m going to show

to you in a minute, but the truth is she was

not having a heart attack. She developed it

subsequently. Nobody understands why, even

Dr. Flocker, Dr. Brains, with their training

can’t answer exactly what caused this woman’s

cardiac ischemia. They think it was spasm,

but there’s no proof of it. I want to remind

you of what Dr. Flocker said. It was by

videotape, so I’m going to read it to you in

case it got lost.

Doctor, let’s categorize your

opinions very briefly and then we will finish.

Do you have an opinion to a reasonable degree

of medical probability whether Mrs. Kamianka

had a myocardial infarction that would date

back to September 5th, 2002?

Answer: I do.

Question: What is your opinion?

She did not.

Do you have an opinion to a

reasonable degree of medical probability

whether she had any significant coronary

artery disease that would date back to

September 5th, 2002?

I do.

What is your opinion?

She did not.

Do you have an opinion to a

reasonable degree of medical probability

whether the performance of an EKG would have

produced any abnormalities?

I do.

What is your opinion?

She did not.

Do you have an opinion to a

reasonable degree of medical Probability

whether a stress test, if it were performed in

September of 2002, would have helped make the

diagnosis of ischemic heart disease or

coronary artery disease?

I do.

What is your opinion?

It would not.

Do you have an opinion to a

reasonable degree of medical probability

whether a cardiac catheterization would have

led to the diagnosis of any clinically

significant cardiac disease or coronary artery

disease?

I do.

What is your opinion?

That it would not.

Do you have an opinion to a

reasonable degree of medical probability what

the cause of death of Mrs. Kamianka was?

I do.

What is your opinion?

Sudden cardiac arrhythmia related to

acute ischemic disease and myocardial

infarction.

Do you have an opinion to a

reasonable degree of medical probability

whether anyone could have predicted on

September 5th, 2002, that Anna Kamianka

would go onto die from a heart attack or

myocardial infarction on November 6th, 2002?

To my knowledge, there’s no way that

anyone could predict that.

That was how I ended my direct

examination. It was followed by 45 minutes of

cross-examination that did not move him from

that position one bit.

And Mr. August has not produced any

testimony from anyone that can date myocardial

injury back this far; and because she wasn’t

having a heart attack, it couldn’t have been

diagnosed.

Now, let’s talk about the testimony

that he did give. Let’s start off with Dr.

Marcus. Just a preview for you, I’m actually

going to show you his testimony. I don’t want

to be accused of taking it out of context.

His theory in this case is based on Dr.

Brains, but let me tell you what he says. He

says, I think there was an occlusion of the

septal branch, and he tells you that there are

no septal branches on this picture, but I’ll

remind you, even though she made fun of my

picture, Dr. Brains who came in said, oh,

yeah, those are septals; they travel on the

surface of the heart and then they go down.

But Dr. Marcus thinks that what happened is

that there was a septal branch of this bigger

artery, the LAD, that occluded. He believes

it occluded sometime prior to six weeks and

that he would defer to the pathologist about

how long it was. And he thinks that that’s

what caused that scar. And he thinks that

because there was this septal infarct and a

scar, that if an EKG — actually, I don’t

think he said EKG. I think he said a stress

test would have been positive. Let’s look at

what he actually said.

This is from his trial testimony,

okay. She did not have thrombosis of the LAD

when she saw Dr. Little on September 5th,

correct?

Oh, I think she did.

So you think she had an acute

thrombosis of the LAD?

Yes. She had — she had clot forming

in the LAD because the septal branches come

off the LAD and she ended up at autopsy having

a gray scar. In other words, a well-formed

scar which must — which had to have occurred

more than six weeks before her death.

And this is where I asked him about

the board.

Okay. Let’s do it this way. First

of all, are there any septal branches on here?

Well, you can see — and I was

pointing to the board — you can see what’s

presented there are the arteries on the

surface of the heart. When we’re talking

about the septal branches, they come off the

undersurface of the left anterior descending

and penetrate the muscle and go into the

septum.

Okay.

Answer: They don’t force the surface

of the heart.

Then I asked him: Would you defer to

a pathologist on the timing of and how long

prior in advance of the death the areas of

infarct seen on autopsy occurred? Would you

defer to a pathologist

Yes.

But let’s look at the pathologist

that Mr. August called for you. And I think a

minute ago when you were talking to Mr. August

you said in fact you couldn’t tell whether

they were older than four or six or eight

weeks, correct?

That’s correct.

It could be as old as four, as six,

could be as old as eight; you just can’t tell.

Answer: Or even more. Could be

beyond.

Okay. And, in fact, it might have

been as recent as four weeks?

Could be, yes.

Ladies and Gentlemen, that means that

the infarct could have occurred any time

between four weeks and the time of her death.

But she goes on.

So, in fact, this infarct may only be

as old as four weeks according to what you

just told us?

Yes.

Okay, or it might be as old as six

weeks?

That’s correct.

Or it may be even older?

That’s correct.

But you cannot say to any degree of

probability that there was infarct present

when this patient saw Dr. Little on September

25th, 2002, correct?

I cannot say other than to say what I

have already said about that.

And then I stood in front of the

board and pointed to different dates after

September 5th and said maybe there; it may

not, that’s correct. May have occurred on

this date; that’s correct. May have occurred

on this date; that’s correct. May have

occurred on this date; that’s correct. Maybe

even on this date; that’s correct.

Moving on forward. Now Dr. Flocker,

you have heard and read his testimony. He

believes that the oldest area of infarct dates

back to the period of time between four and

six weeks. You’re familiar with that.

Yes.

Now, you are not saying that he’s

wrong. You’re just saying that you have a

different opinion.

That’s correct.

And, in fact, because he’s a cardiac

pathologist you would pay attention to what he

says.

Now, let’s talk about Dr. Marcus and

his opinion that there must have been

occlusion of a septal branch of the LAD. Now,

again, he’s deferring to a pathologist. He

wasn’t there. He didn’t see the heart.

That’s his theory, that it must have been

there and that’s how it would have been

diagnosed.

Well, let me show you what he said.

Well, you know that Dr. Brains testified that

when they did this autopsy they would have

been looking for occlusion of any of the

coronary arteries including the septal branch.

Do you know that?

Answer: I don’t know whether there

was any specific mention of the septal

branches or dissected out the septal branches.

There’s no mention of that in the —

Question: Well, her testimony is

that they would have looked, that that’s their

routine, and that they didn’t find any. Would

you defer to her or do you think she’s wrong

or making it up?

Well, these are — these are arteries

on the surface. I would not — or not on the

surface. They are penetrating arteries that

are within the muscle. I don’t think that’s a

routine evaluation. It’s not a routine.

So, his thing is it’s not there,

because if it’s there, it doesn’t make sense.

Well, would you defer to Dr. Brains

who is the coroner who is responsible for?

Sure, setting up policies for her

pathologists, sure.

Okay. And if, in fact, they did look

for occlusion or abnormalities in the septal

branch and didn’t find any, would that be

inconsistent with your opinion that she had a

clot in the septal branch that lysed itself

and just disappeared?

Answer: It didn’t lyse itself. She

went on to have a septal infarct. What I’m

saying is its origin was in the left anterior

descending. That process occurred within the

arte~ involved the septal branch. It’s a

bystander of the process occurring in the

artery. It’s a branch.

But you know that when Dr. Brains and

her staffed looked at the coronary artery,

they found plaque, and they found the mbug of

different ages.

Okay.

But none of the thrombus dated back

to September 5th.

Answer: The scar sure did.

But none of the thrombus was that

old.

I don’t know that they said any part

of the organized thrombus was not back to

September. There was well organized thrombus

of different ages.

So, his opinion it’s not there

because — or it’s diagnosable because, you

know, it’s there and Dr. Brains just didn’t

look for it.

Well, let’s look at what Dr. Brains

said. There’s no pathologic evidence of what

caused that old scar in the septum; is that

correct?

That’s correct.

It could be due to something like

spasm of the coronary arteries; is that

correct.

Yes, that’s correct.

There was no evidence though that

there was any occlusion of the coronary

arteries that would have caused that septal

scar, correct?

That is correct.

You can’t say whether she was

suffering — had or was suffering from an

acute bronchitis on the day she saw Dr. Little;

is that correct.

In September?

Yes.

No, I cannot say.

And she continues on about the septal

branches. This is talking about Dr. Sleesman,

the doctor who actually did the autopsy.

Now, when he looked at Mrs.

Kamianka’s heart, he should have been looking

for an occlusion or abnormalities in any of

the coronary arteries.

That’s what he should have done, yes.

And that’s what you believe he did.

Yes.

And because of the presence of scar

in the septum, you would anticipate that he

will look for any abnormalities in the

arteries that would be perfusing the septum?

Correct.

And in this case, the autopsy doesn’t

indicate that there is any abnormalities of

the septal branch of the LAD; is that correct?

That’s correct.

But you would have expected that he

would have when he examined this heart looked

for any abnormalities of the’ septal branch of

the LAD.

Yes, whatever he could see with his

naked eye he would have looked at.

But, particularly, in the face of a

septal scar, it’s your expectation and your

testimony here today that he would have looked

at the septal branch of the LAD that would

have perfused the area of the heart, correct?

Yes, I would — he would have looked

at everything, yes.

And if he looked at it and found any

abnormalities, you would expect that there

would be a slide from that, true?

Yes.

And there would be some description

on gross examination that he found some type

of abnormality in the septal branch of the

LAD?

Yes.

There is no mention of any

abnormalities of the septal branch of the LAD

in this autopsy, correct?

Answer: That’s correct.

Final question: So, it’s fair for us

to assume, and it’s your testimony, that the

septal branch of the LAD was examined and

found to be normal?

Yes.

Ladies and Gentlemen, the reason that

I took the time to go through testimony is

because Mr. Jones keeps scaring me when he

says after all these years of doing this kind

of work that he doesn’t understand the

pathology issues in this case, my concern is

that you don’t or didn’t the first time

through, but what’s important about what those

witnesses said and I tried to iust show for

you, is that Dr. Marcus believes there could

have been diagnosis made because there was

occlusion of the septal branch that caused

this scar. And the truth is, his testimony is

based on the pathology findings of Dr. Paltry

and her findings and her testimony on the

stand do not support his opinions. She can’t

say there was occlusion of the septal branch.

She can’t say there was scar. She can’t say

there was ischemia. And because those

findings weren’t present, Dr. Marcus, who said

he deferred to a pathologist, can’t say that a

stress test here or here or here or here would

have made a diagnosis of coronary artery

disease or ischemic heart disease.

Now, he made some comments about the

scar. Ladies and Gentlemen, let me remind you

because, again, I immersed myself in this

medicine till it’s now getting second nature

to me, but let me reinforce it. Dr. Brains

when she testified, Mr. August asked her about

this gray scar, and he seemed to try to make

the point that if there’s gray scar it must be

old;-it must date a long way back. Well,

remember what she said. She said some people

scar to gray; some people scar to white. It

takes place at different rates; and I can’t

really say what the importance of a gray scar

is.

And to be fair to the facts of this

case, I don’t want you to take my word for it.

This is her testimony.

You talked about the different

people’s healing response. Some people heal

to gray, and that’s a mature scar, right?

Yes.

Some people go onto mature to form a

white scar?

That’s correct.

So, based on your understanding of

the fact that this car is gray doesn’t mean

that — because you don’t know that this

lady’s healing response, whether this was a

fully mature scar or whether this was on its

way to becoming white?

That’s correct.

The truth is she doesn’t know

anything about the fact that it’s gray or

white. It could be gray as a final scar,

could be white. It doesn’t make any sense.

I’ll remind you that Dr. Flocker when he

testified that a gray scar would be

an immature scar, and that would be consistent

with an infarct that was four to six weeks

old.

As long as I’ve got this page out, I

will show you, there seems to have been some

discussion from Mr. August whether Dr. Flocker

can weigh in on this case because he’s not a

forensic pathologist. You’ll remember back to

opening statement when he tried to paint his

picture of this case, he seemed to make a big

deal about the fact that Dr. Flocker, although

he’s got an incredible CV, isn’t a forensic

pathologist. Let’s see what his expert says.

Okay. Now, you certainly don’t

doubt, Doctor, or don’t dispute Dr. Flocker has

the ability and the qualifications to offer

opinions about the cause of death and the

timing of infarcts in this case?

No, I don’t.

So the fact that he’s not a forensic

pathologist doesn’t mean anything at all, does

it?

No, it does not.

Ladies and Gentlemen, I think any

argument that Dr. Flocker is not to be believed

in this case we can put to rest.

The truth is this man is the founding

member, the founding editor of the Journal of

Cardiovascular Pathology. He’s lectured

around the world. He’s lectured in this

country. He’s published over 200 peer

reviewed articles, written countless book

chapters and teaches both pathologists and

cardiologists because he has a position not

only in the department of pathology at his

teaching hospital but also in the department

of cardiology.

When you heard the jury instructions

a few minutes ago, the Judge told you you’re

going to see the instructions on credibility.

One of the things you’re going to see is that

you are permitted to weigh his ability to know

these things, his intelligence, his training,

his expertise. Ladies and Gentlemen, this man

is incredibly well-qualified to testify in

this case.

Now, interestingly — and there’s

been a little obfuscating in this case – Mr.

August keeps saying do the EKG; the EKG would

have made the diagnosis. Well, he doesn’t

really distinguish whether it would have made

the diagnosis here or here. There’s a method

to that. And the method to that is he’s

produced testimony from a number of people,

including Dr. Flocker, that an EKG might have

been positive on this date; and he’s produced

Dr. Marcus who said it would have. There has

been no testimony from any witness in this

case that simply an EKG would have made the

diagnosis back here.

The testimony from his expert — and

I can show you — this is the testimony of Dr.

Morgan. Let’s see what he says

about whether an EKG would have been

diagnostic on September 5th.

Now, let’s just assume for a moment

that an EKG had been done on Mrs. Kamianka on

September 5th, 2002, by Dr. Little. Assume

that, in fact, happened. Do you have an

opinion based on reasonable medical certainty

and/or probability as to what the likely

results of the EKG would have been for Mrs.

Kamianka on that day?

And his compelling response is: I do

not.

Ladies and Gentlemen, that means that

his own expert witness concedes — and that

was Mr. August’ question by the way — that he

can’t say that an EKG done on this date would

have made the diagnosis.

Now, to be fair to the facts of this

case, because I don’t want to take things out

of context, he also said that whether it was

abnormal or not, a stress test should have

been done; but my point is to show to you that

Mr. August is blurring things a little bit

here; and when he said to you in closing

argument, do an EKG, it would have made the

diagnosis, his own witnesses don’t support

that as it relates to Dr. Little.

Ladies and Gentlemen as it relates

to the issue of whether she was having a heart

attack or whether there was injury to the

heart that could have been diagnosed, the best

they can say is from Dr. Brains who says

maybe; and maybe is not good enough. We have

heard countless times since we walked into

this courtroom that he has the burden of

proof, that you can’t find against Dr. Little

on either the standard of care or proximate

cause unless he proves that that EKG or that

stress test would have been positive. And

Ladies and Gentlemen, he has not.

Another thing that he just said in

opening statement that, frankly, Ladies and

Gentlemen, is outrageous, he made a comment

that, well, if there’s infarct here, according

to Dr. Brains, there must have been some

ischemia sometime before that, and he stopped

there, but what he did was try to suggest to

you that there would have been ischemia, even

though there wasn’t death that would have

produced a diagnosis, Ladies and Gentlemen,

the reason that I think thaws outrageous is

not a single witness, not a single one, not

Dr. Marcus, not Dr. Brains, not Dr.

Morgan, no one that the

defendants have called supports that in any

fashion, Ladies and Gentlemen. We’re talking

about obfuscation. That’s not fair. And

that’s what is taking place here. Because he

just raised an issue that his own experts

won’t support.

Now, let’s talk briefly about the

credibility of the experts. Talk about Dr.

Marcus from Harvard. It’s been awhile since

you heard him testify, but let’s talk about

him. Again, I encourage you, when you go

back, look at the credibility instruction that

you got. He’s a cardiologist. To be fair, he

sees some patients that he treats for

cardiology problems that he provides primary

care to, but as a cardiologist, he spent his

life looking at and worrying about diseases of

the heart. Of course, when he sees a patient

with chest tightness, his reflex is to think

that ifs cardiac. The truth is he can’t

fairly assess the care of a primary care

provider who didn’t do cardiology training. I

suspect, Ladies and Gentlemen, you got a

pulmonologist to look at this case, they would

say, should have done a VQ scan and ruled out

a pulmonary embolism. If you looked at —

sent it to an oncologist, he might look at it

and say, hey, she might have lung cancer; you

have got to do a spiral CT of the chest. The

truth is it’s not fair to ask a cardiologist

to comment on the standard of care for

somebody who’s not.

The other thing I think that you will

remember about Dr. Marcus is he wasn’t here

the way my experts were, to answer questions

fairly whether they were brought by the

plaintiff or the defendant. He was great. He

was very accommodating to Mr. August. As soon

as me or Mr. Jones asked him questions, he dug

in and he fought, and that’s because he was

here as an advocate. He was here to try and

win, to try to make sure that you understood

his opinions instead of doing what an expert

should fairly do, which is to come here and

say here are my opinions. You know, I don’t

have a stake in this. I don’t care whether we

win or lose. I’m just telling you what I

think.

One of the things you’re going to see

in that credibility instruction is you’re

allowed to consider the frankness or lack

thereof of the witness. Ladies and Gentlemen,

I think if you remember Dr. Marcus was not

frank with the defendants in this case.

Let’s talk about Dr.

Morgan. Did you notice, Ladies

and Gentlemen, a little bit like Dr. Blood who

does this all the time he seemed familiar with

all the lawyers. The reason he’s familiar

with all the lawyers is he does this all of

the time. He used to spend 60 percent of his

time seeing patients, and the remaining 40

percent of his time doing medical/legal

reviews and providing testimony in court

cases. Then what happened? The legislature

and in their wisdom changed the rules for what

it takes to be an expert. They said you can’t

just see patients 60 percent of the time.

You’ve got to see patients 75 percent of the

time. So, you know what Dr.

Morgan did? He started seeing

patients more so that he can stay qualified as

an expert. He told you he does this now 25

percent of his time, and he told you that the

overwhelming majority of the reviews that he

does is on behalf of the plaintiffs.

Ladies and Gentlemen, I think one of

the things when we’re talking about

credibility of anyone in this courtroom that I

can’t let pass is he wrote a report in this

case, and you heard Chris ask him  about it.

When he wrote this report, he put, by his

errors in management, Dr. Little and his

employees are responsible for this patients

death. The conduct of Dr. Little rises to the

level of conscious disregard for the rights

and safety of this patient which had great

probability of causing harm.

Ladies and Gentlemen, when he came in

here and testified, what did he say? He said,

well, I don’t really believe that. And Chris

said, well, why did you put this in your

report; and the answer was — and it speaks to

his credibility — the answer, I’ll remind you

was Mr. August asked me to.

Ladies and Gentlemen, experts are

supposed to reach their conclusions on their

own. They’re not supposed to do what the

lawyers tell them. And that’s why — Dr.

Morgan, an entertaining little

witness, can’t be believed in this case. He’s

got a bias; and he has proved that he will do

things at the lawyer’s request.

Now, the last witness I want to talk

about in terms of credibility, plaintiffs

brought was Dr. Brains. And Ladies and

Gentlemen, I didn’t mean any disrespect to Dr.

Brains; and I hope none of you thought that I

was suggesting it. My only point in talking

to Dr. Brains as the coroner is against the

backdrop of Mr. August’ opening statement. He

made this big deal about how she is coroner

and threw it around like the fact that she’s

coroner means that somehow she’s got special

qualifications. My only point was to show you

what a coroner is.. What it turns out is all

you have to do is be a doctor, be in practice

two years, run for the position of coroner and

get more votes than anybody else. I didn’t

mean to disrespect her or say that she wasn’t

a good physician. She’s probably a wonderful

coroner. She’s probably a great

administrator. She’s got this program for

grief counselors. But my point with Dr.

Brains is she does not have the training and

the experience looking at pathology from the

heart that Dr. Flocker does.

Dr. Flocker studied it. He’s done

research. He’s gotten grants. Dr. Brains, no

disrespect to her, a lot of her time is spent

hiring and firing employees, making sure her

department runs smoothly, making sure she sets

a budget, sets policies, and that’s why Dr.

Flocker has more weight in this case.

Now, to make sure we are complete, to

be fair, I also want to talk about my experts.

You will remember Dr. Haines who was the first

one that you saw in this case. Dr. Haines,

he’s done this 12 times total. He’s testified

at trial one time before, and that was on

behalf of a plaintiff.

Dr. Haines has reviewed cases for me

in the past; and I will tell you, the last

time I sent him a case, you heard him testify,

he looked at the case and said, Tom, I think

your doctor deviated from the standard of

care. Ladies and Gentlemen, I chose him

because he’s a straight shooter, because he

tells me things like that. He doesn’t tell me

what I want him to. He doesn’t put things in

his report because I want him to. He looks at

the facts and says whether he thinks it met

the standard of care.

I also picked him, Ladies and

Gentlemen, because he is a full professor at

the University of Marvelous. He’s incredibly

well-trained, and that’s why I chose him,

because I wanted to bring to you high quality

physicians who came in and told you straight

what they thought about the case.

I will also talk briefly about Dr.

Flocker. Ladies and Gentlemen, I don’t know

what else to say. I don’t know how I could

have found any more qualified expert to talk

about the issues in this case. I didn’t just

go and get a doctor who reads the Journal of

Cardiovascular Pathology. I got a doctor who

founded the Journal of Cardiovascular

Pathology and spent ten years as the editor

deciding what articles would be published in

that journal. He made some comment that he’s

some high-priced expert from New York City.

Ladies and Gentlemen, don’t get distracted by

that. He charges for his testimony. Dr.

Marcus charges for his testimony. All of

these physicians have to charge for the time

that they spend away from their office.

Ladies and Gentlemen, in the final

analysis, Dr. Marcus charged more to come

here. Now, to be fair, he’s $3,500 a day.

Dr. Flocker is four. Dr. Marcus is here for

two days. Maybe it wasn’t his fault. But if

we’re talking about money and the cost of

doing these reviews as some way to say Dr.

Flocker is making this up, that’s not fair either.

Ladies and Gentlemen, something else

you should know about Dr. Flocker when you

assess his credibility. The first time I met

Dr. Flocker and the reason that I picked him to

review this case, is the first time I met him

was when I was sitting on the opposite side of

the table from him and took his deposition;

and at the end of that deposition, I concluded

this is a really well-trained expert who

really knows what he’s talking about. And

that’s why I said to myself, next time I have

an issue involving cardiac pathology, I’m

going to him.

Something else you should know about

him is I have sent him other cases because I’m

impressed with him as a witness. There have

been other occasions, and you heard him

testify, where I sent him a case, he looked at

the slides, he told me what he thought, it

wasn’t helpful to the defense. He didn’t say,

well, tell me what you want, Tom, and I’ll

write your report and help you defend the

case. He said, hey, this is what I see; I

can’t help you.

Ladies and Gentlemen, the next

subject I’m going to touch on is one that

every defense lawyer hates to touch on, and

it’s the damages in this case. And the reason

that we all hate to touch on it is it’s a

catch 22. And let me tell you why it’s a

catch 22. If I stand up here and talk about

damages and — let me see if Mr. August is

surprised or not — I’m going to put up his

boards. The reason we don’t like to talk

about it, the reason it’s a catch 22 is

because if we talk about damages he can jump

up and stand up here and say, Ladies and

Gentlemen, Mr. Kane is talking about

damages, he must think he’s losing. Let me

tell you first off that is absolutely the last

reason in the world that I am talking about

damages in the case. I’m talking about

damages in this case because if I don’t he’s

going to jump up and say, Ladies and

Gentlemen, at least Mr. Kane and I agree on

one thing. We agree that this is a reasonable

number, and we must agree because if Mr.

Kane didn’t think that was reasonable I’m

sure he would have stood up and told you.

The truth is I’ve got to comment on

it, not that I want to. I certainly don’t

want you to think that we are losing or that

I’m worried about you reaching a verdict, but

I have to comment on it one way or the other.

First of all, let me point something out. And

I don’t know why Mr. August has this listed

here. You’re going to see in the jury

instructions that the Judge is going to give

you, this exact same language is going to be

there, except there’s going to be nothing

about parents or next of kin; and that’s

because they don’t have a claim in this case.

You’re not here to reach a verdict for the

parents and next of kin. This is just

misleading. This is not part of your

deliberations. And, in fairness, he should

have crossed them out.

The second thing that you should know

about your job is it’s to provide reasonable

compensation, to fairly compensate this family

if you ever get to a verdict even though I

don’t think you should do it. You should

understand about Mr. August, when he offers

you this guidance, his job is not to reach

fair and reasonable compensation. His job is

to get everything he possibly can for his

client. I will tell you when plaintiffs’

lawyers sit down and come up with a number,

they try and pick as big a number as they can

that they can look at the jury with a straight

face and ask for it and not run the risk of

losing their credibility or offending the

jury.

So, Ladies and Gentlemen, when he

puts this as a reasonable number, don’t take

him at face value. It’s your job to determine

whether this is a reasonable number. And in

fairness — again, to be fair to the composite

of the facts of this case, he put an expert

witness on the stand, Dr. Blood, who we all

know well, and the reason that we don’t call

anybody to oppose him is we’re not here

arguing about how he calculates his numbers.

Keep in mind, he didn’t come here to say she

would have lost these numbers. He didn’t come

here to say she would have worked until 55 or

62 or 67. That’s not his role. All his role

is to say if she were to work that long this

is what it would cost to replace her services.

We’re not arguing about that. We can change

the rate of interest that he uses to calculate

this number and come up with different

numbers, but that’s — that’s — he’s not

saying that she lost this. He’s saying if she

would have worked that long, that’s what she’s

lost.

Again, to be fair to this case, he

offered alternate numbers to this. He offered

a number to her work life expectancy, which

would have been $276,000; and he offered

another number if she worked to 65, which she

would have worked towards. And if we were

being fair to the facts of this case, we would

have laid out those possibilities because

they’re — it’s up to you to determine whether

she would have worked to 55 or 62 or 67. And

in fairness, this is a little bit presumptuous

for Mr. August to put that out. That’s your

job to determine how long you think she would

have worked based on the facts of this case.

And he — this number calculates her

working to 67 years old. Ladies and

Gentlemen, his own experts testified that she

only would have lived to her 70s. So, he’s

got poor Mrs. Kamianka working till the day

she dies just about.

The last comment I will make about

damages and value in this case is when you go

back, if you ever get there — and, Ladies and

Gentlemen, you shouldn’t; you really shouldn’t

in this case, not with the problems he has in

his case. If you ever get there, though,

think about money, think about value. And I

guess one of the units of value that I think

about when I think about money is I think

about my home, and the average value of a home

in Cuyahoga County is something like $130,000.

For most of us, that’s the biggest purchase we

ever make, and we work for 30 years, most of

us, to pay that $130,000 house off. We go to

work every day, and we do it for 30 years, and

it’s the biggest check we write every month.

And just if you go back and you ever get

there, and you shouldn’t, think of the value

of money. Don’t let him get ‘you talking about

millions of dollars unless you get there on

your own. That’s for you to decide.

Now, one of the things that occurred

to me as I was listening to this case, and in

particular the closing argument was that you

can tell a lot about the strength of the

quality of a case by how a lawyer presents it

to you. If you got a really good case, Ladies

and Gentlemen, you go right to the issues.

You talk about the issues. You don’t get

caught up in extraneous issues. You be fair

to the facts. You don’t take things out of

context. You don’t overstate. You don’t

mischaracterize, and you don’t waste time.

When you got a case and you are working around

some issues, you got some problems, you do all

of those things. I just want to go to — and

I made a list from the last eight or ten days

or however long it’s about been. I’m not

going to talk about them.

First of all, I heard it in his

closing argument today. He talked about

there’s a red light in medicine; and if you go

through the red light, then you made a

mistake. It’s a little bit misleading, Ladies

and Gentlemen, because when you go back and

deliberate, one of the things you’re going to

see is he has to prove two issues. He has to

prove that the doctor went through the red

light; and the fact that he went through the

red light is not enough, okay, not that Dr.

Little did in this case or not even “that Dr.

Madison did in this case, but that’s not enough;

you got to go through the red light and you

got to cause an injury to somebody. That’s

why it’s not a fair analogy. He didn’t bring

that second part up to you; and he didn’t

remind you that this analogy stops a little

bit short, but he’s got to prove both issues.

He’s got to prove there was a mistake and that

it caused injury.

And, Ladies and Gentlemen, at risk of

sounding like a broken record, he hasn’t even

gotten close to proving the second two issues,

not that he’s gotten close to the first

either.

Let’s go through just some of the

things where I don’t think he was fair to the

facts of this case. Was it fair when he in

opening statement said she called a d said

he — she really, really needed to be seen?

Was it fair when he said if it walks like a

duck and quacks like a duck, it’s a duck, when

his own expert witness came in and told you

this is an atypical presentation? Was it fair

in opening statement when he said Dr. Little,

he diagnosed bronchitis, and Dr. Madison just

latched onto it?

Ladies and Gentlemen, the testimony

of Dr. Madison was he did his own independent

evaluation and did not base his opinions and

his evaluation of this patient on something

Dr. Little did.

Was it fair in opening statement when

he stood up here and said, and the defendants

are going to try to blame the plaintiff for

what happened here? Ladies and Gentlemen, I

have been sitting here trying to pay close

attention. I know I never said it. I know

none of my witnesses ever said it. I suspect

strongly that none of Mr. Jones’s witnesses

have said that. We’re not blaming Mrs.

Kamianka, and it was unfair to say that we

were.

You know, he made this comment the

patient wasn’t told she was at risk for

coronary artery disease. This patient was

told from the day she walked into his practice

and the day Dr. Little sat down and made out a

family tree and sat and talked to her about

what happened to her family and different

issues and they identified that the brother

had had a heart attack, they had a discussion

at that point that she was at an increased

risk for coronary artery disease; and it

wasn’t fair for him to suggest that the

patient wasn’t aware of that.

We talked about it, the blood

pressure not being done. That wasn’t fair.

There’s no criticism of that. We all know it

was done. And talked about whether there was

a letter about the cholesterol. Ladies and

Gentlemen, his own experts don’t criticize

that. It’s not fair for him to stand up and

make a big deal about it when his own experts

don’t.

One of my favorites was, do you

remember when he put Dr. Marcus on the stand

and said, well, Dr. Marcus, isn’t there

evidence of a chronic cough, do you remember

that, put it up on the thing, chronic cough.

Mr. Jones got up two minutes later and said

what’s at the beginning of that sentence,

denies shortness of breath, chest pain,

chronic cough. It’s not fair to suggest here

was a chronic cough when the very same

sentence says that there wasn’t.

Was it fair in opening statement when

he said this patient lived a sedentary

lifestyle and she wasn’t active and that’s

why — it’s another risk factor? Was it fair

against that backdrop of Dr. Florra and Dr.

Morgan both saying, no, she

wasn’t sedentary, that’s not a risk factor?

Mr. Kamianka from the stand said, no, she

wasn’t sedentary.

Mr. August claimed in opening

statement that she was. He claims she had

another risk factor. Was that fair? Was it

fair when he said this big deal in opening

statement that Dr. Flocker is not a forensic

pathologist who we know from his own expert,

Dr. Brains, who he called, it’s not a big

deal, even she admits it’s not a big deal.

Was it fair when he kept making a big

deal about the cost of the lab suggesting

that, oh, they must not have been offered

because there’s no way she would have turned

them down because of cost without also putting

it against the backdrop of a woman who made

about $15,000 a year and had never gotten a

mammogram despite the fact that it was

recommended? If he was being fair to the

facts of this case, he would have admitted

that, yeah, it’s a possibility because an

extra $40 or $80 or whatever it is, that’s a

lot of money when you make $15,000 a year.

You know, was it fair when he made this

comment about how she religious — religious

she was about coming for her annual visit

without also being fair to the facts and

saying, in all fairness, she came every year;

we don’t know whether it was because she was

concerned about her healthcare or whether she

simply wanted to get her oral contraceptives

renewed? Is it fair when he’s talking about

Dr. Flocker with all his qualifications and

suggested that somehow he’s not an appropriate

expert for this case?

Was it fair when he said a few

minutes ago in his closing argument that maybe

there was ischemia that preceded the death or

the muscle injury that Dr. Brains said must

have been greater than six weeks even though

not a single expert supports that?

Ladies and Gentlemen, the reason you

say things like that in closing argument when

you don’t have a witness who supports it, when

you know there’s no testimony to stand on, is

because you know you have got a huge hole in

your case. It’s because you know that this

lady didn’t present looking like she was

having a heart attack, having symptoms of a

heart attack or ischemic disease; and it’s

because he knows that on the issues on this

case he loses. His case is based on the

premise that she had diagnosable and treatable

coronary artery disease going back to

September 5th, 2002. And the problem is he

hasn’t proven that there was disease that

could have been diagnosed. And, Ladies and

Gentlemen, that’s why he’s dealing these

things that are unfair.

Now, you’re going to see here in

about two minutes, I’m going to sit down and I

don’t get to talk again, but Mr. August does.

He’s going to say lots of things, he will

probably say Mr. Kane is a terrible guy,

how dare he attack me. A couple things, first

of all, he said I obfuscate, which I don’t

think is very fair, but it’s only fair that it

be thrown right back at him. The second thing

is — and this happens in these cases — he’s

going to be getting up and say, well, if you

don’t have the facts, argue the law; and if

you don’t have the facts — or the law, argue

the facts; and if you don’t have either, pick

on the other lawyer, beat him up. Ladies and

Gentlemen, that’s not what I’m doing here. I

hope you don’t think that’s what I’m doing.

What I’m doing is pointing out to you how this

case was brought to you and pointing out that

you have to look at all of the facts. You

have to put them in context. And if you

don’t, that’s not fair.

The truth is Mr. August, you have

.seen him on his feet all week, he’s a very

good lawyer. He’s smooth. He’s polished. He

should be an anchor on network 1V. I mean, he

looks the part. He’s terrific at it, Ladies

and Gentlemen, but the truth is he hasn’t been

fair to the facts in this case. He hasn’t

brought you all the facts, Ladies and

Gentlemen. And when he stands up and gets to

argue and I don’t get to respond. I want you

to challenge him. I want you in your mind to

make him explain why would he do all these

things, why would he not be fair. And another

thing, and I think he should answer for you,

is why if Dr. Flocker is wrong and this death

of the muscle was not four to six weeks old,

why not go and consult a cardiac pathologist,

have him look at the slides and say this is

what Dr. Brains said, and I agree with it

completely. He had every right to do that.

He had every opportunity to do that. Ladies

and Gentlemen, he didn’t produce that

testimony for you. And he can say, well, Dr.

Brains is good enough.

Ladies and Gentlemen, he knows that

I’m going to get up and say I’ve got a cardiac

pathologist; he doesn’t; and he could have put

this all to an end by getting a cardiac

pathologist who would say, no, no, no, no, I’m

a cardiac pathologist and Dr. Flocker is wrong. He

decided not to do that, Ladies and Gentlemen.

I think he should answer for you why he

didn’t.

Ladies and Gentlemen, I’m going to

ask you to go back and deliberate, and I’m not

going to tell you don’t deliberate. I want

you to go back, I want you to look at these

exhibits. I want you to talk, and I want you

to talk about your memory of the testimony,

and I want you to remember the things that all

the lawyers have told you, and I want you to

remember the things that I told you and tried

to show you in this closing argument. I want

you to do those things because, Ladies and

Gentlemen, if you do, you will find the truth

of the matter in this case, and you will

return a verdict for Dr. Ken Little.

Like eve body else here, including

Mr. August, Mr. Kamianka, all the lawyers, I

know this is hard, and I know you have worked

hard. I know it probably hasn’t been fun

listening to repetitive testimony. There’s no

way around it in this case. I want you to

know on behalf of myself, on behalf of my

friend, colleague, Chris Reid, but most

importantly, on behalf of Dr. Ken Little, I

thank you for your time and attention.

THE COURT: Thank you, Mr.

Kane.

Mr. August, you may argue.

MR. AUGUST:

Thank you.

FINAL CLOSING ARGUMENT ON BEHALF OF THE PLAINTIFF

Trust me, be brief. I’m as tired of sitting as you are.

I have never been accused of being so

unfair in my whole life, I have to admit, but

you are the ones to determine whether that’s

true just like you’re the ones to determine

the credibility of the witnesses and the

experts. It’s very interesting that Mr.

Kane would say that Dr. Morgan

is some hired gun and that he is not a very

credible witness, but that was about 30

seconds after he said, hey, he was right about

that question concerning the results of the

EKG on 9/5. So, you know, take it for what

it’s worth. Pick and choose. You know, he

was really very competent when he said I don’t

know, and he read it to you, he showed it

right on the screen, I do not know what the

results of the EKG on 9/5/02 would be because

I’m not a cardiologist; I defer to the

cardiologist. So, he was very, very good and

competent then, but he wasn’t when he didn’t

like the answer that he got.

So, you know, put it in perspective;

and I think it’s unfair for him to do that,

but be that as it may, you decide credibility.

So, you know, put it in perspective;

and I think it’s unfair for him to do that,

but be that as it may, you decide credibility.

Economic losses. It’s my duty. I am

absolutely duty bound to present to you In my

open close, as they call it, economic numbers

if this is about economics and damages. So,

to say that I did something wrong by

presenting economic numbers to you is

absolutely verboten. I mean, that’s — I have

to. But to compare the value of Mrs. Kamianka’s life

to this man and to her three sons with a mortgage or a house or

a piece of property is beyond an insult; and I think you

all agree with that.

Now, let me just touch on a couple

of things. I’m going to address kind of both

counsel when I say Mr. Kane says that Dr.
Little is a good and careful doctor, and Mr.

Jones says that Dr. Madison is a good man- and
I think I said in the very beginning of this case it’s not about whether they are nice guys

or whether they are good people. That’s not what I’m talking about

If I run a red light that doesn’t necessarily make me a bad driver.

It means I made a mistake at that one time,

but it doesn’t reflect on my quality as a

human being or for that matter on my quality

as a driver. It means I made a mistake. I

had a lapse at that moment. So, to bring it

to a personal level is a cheap shot. This is

not about whether they are good people or bad

people. I never said this was about them

being bad people, nor did I say they were bad

doctors. They just made a mistake. That’s

what this is all about.

All of this talk about it’s an

atypical presentation, it’s a — you know,

it’s — you have got a million other things

going on here in this. document I have never

seen before from Mr. Jones, one thing that

nobody has ever really addressed, yeah, okay,

she had other symptoms, never denied that,

it’s in the records, you have seen it 100

times, but on September 5, what did she come

In with? She came in with chest pain. That’s

something that was kind of played down here

talking about all this causation testimony of

Dr. Flocker and Dr. Brains and so on and so on

and so on. Chest pain. That wasn’t there

before ever in her whole life, and it’s

consistent with occlusion or partial occlusion

of the coronary arteries.

The reason that Dr. Madison and his

counsel are not contesting the pathology is

not because Mr. Jones doesn’t understand it.

He is a very smart man. I’ve tried cases

against him. He’s a very talented lawyer.

He’s never said anything like that in his

whole life. The reason he’s not contesting

the pathology is because they can’t. Because

both Dr. Brains and Dr. Flocker have made It

painfully clear that on 11/6/02, no question

it was diagnosable. And Mr. Kane says that

Dr. Flocker said it could have been

diagnosed- no, no, no, no he didn’t say it

could have been. He said it would have been,

and he held that opinion to a reasonable

degree of medical certainty.

I’ve got a lot of things, but I’m not

going to say them. I would say this, however.

Mr. Jones referred to Dr. Smead and the fact

that he said, well, they had two different

doctors in two different specialties, plus a

nurse all saw the same thing and came to the

same conclusion and, therefore, it’s okay as

if to say two wrongs make a right — or in

this case, three wrongs make a right. But I

believe that Dr. Little and Dr. Madison are the

people in charge in their respective

environments. Dr. — Dr. Madison does not defer

to the nurse, I hope. He said he wouldn’t,

and I wouldn’t expect him to, particularly if

you remember the testimony of Nurse Deitrick

she went through a preceptor ship where she

shadowed somebody for a period of, she said,

two to three months starting at the end of

July and then went solo after that, which

means that in this case she had been on her

own as an ER nurse for about a month, give or

take. So, maybe two weeks, maybe three weeks,

four weeks, but that’s about it, folks.

So is this something that Dr. Madison

should — someone Dr. Madison should defer to?

I doubt. But when you get back there, I want

you to look at the chart, and I’m not even

going to put it on the screen because it would

take time, there is something that’s got a

Bates stamp down at the bottom that’s numbered

31, it’s this checklist in the emergency room,

and you will see this section here right under

all these big black dots where there are all

these things checked — now, Nurse Deitrick

came in here and testified in a deposition

that, oh, yeah, yeah, yeah, yeah, I remember

now, the pulse ox was 97 percent. How she

remembered that is beyond me. And she said,

oh, yeah, there was coughing; I forgot to

write that down; and that’s why it doesn’t

show up in the nursing assessment sheet.

Well, if you look on this, there is a very

detailed breakdown that she filled out in

total and the very last question is cough,

slash, sputum, the answer is none. She

doesn’t check a thing. She doesn’t say a

thing about coughing.

So, you are the ones to assess

credibility; and you assess credibility not on

the basis of just their appearance, because

some of them didn’t actually appear, but on

the basis of the records themselves.

I think in the end, Ladies and

Gentlemen, that you have — and I — honestly,

I don’t believe that it is unfair or improper

or not reflective of the evidence in this

case. Two times in this woman’s life she

complained of chest pain. Two times. And we

heard a lot of talk about how EKGs can be done

easily and anywhere and very effectively. It

was never done. I will remind you, chest

pain, EKG; if there’s pain in the chest, get

the test.

Thank you very much.

JUDGE INSTRUCTIONS TO JURY:

THE COURT: Thank you, Mr.

August, counsel.

Ladies and Gentlemen, a few closing

remarks. The Court has given you the

instructions on the law applicable to this

case already. I will now instruct you on how

to conduct your deliberations and prepare your

verdict.

First, the selection of foreman or

forewoman. When you go to the jury room, your

first function will be to select one of your

number to serve as foreman or forewoman. The

person you select to preside over your

deliberations does not have any greater power

nor does this person’s vote have any more

importance than the others. He or she serves

the purpose of helping to conduct your

deliberations in an orderly manner and to give

each of you the opportunity to express your

opinions. One additional duty of the

foreman/forewoman is to see to it that the

verdict forms are returned to the Court after

you have reached a verdict.

Now, the verdict forms, I will now

read what the verdict forms say and caution

you not to make any inference based on the

order in which I read them. In addition to

the instructions that go back, you will have

the interrogatories that I talked about

earlier. These you will deal with first, and

you will follow the instructions at the bottom

of each interrogatory. Depending on how you

decide these interrogatories will guide you

when to reach the general verdict forms.

Here’s the general verdict form. The first

one, if you find for the plaintiff, we the

jury being duly impaneled upon the concurrence

of the undersigned jurors, being not less than

three-fourths of the whole number thereof do

hereby find in favor of the plaintiff,

Mr. Kamianka, and assess damages in the

amount of blank and against the defendants,

Timothy Madison, MO, and/or Ken Little, DO, the

instructions circle one name or both.

The next verdict form is a defense

verdict form which states the following. We

the jury being duly impaneled upon the

concurrence of the undersigned jurors being

not-less than three-fourths of the whole

number thereof do hereby find in favor of the

defendant, Timothy Madison, MO, and against the

plaintiff, Mr. Kamianka. And the third

verdict form is, we the jury being duly

impaneled upon the concurrence of the

undersigned jurors being not less than

three-fourths of the whole number thereof do

hereby find in favor of defendant, Ken H.

Little, MO, and against the plaintiff, Mr.

Kamianka. And on each of these general

verdict forms is a signature line for the

jurors. You reach these by following the

instructions at the bottom of the

interrogatories.

In order to conclude this case, it is

necessary that at least six members of the

jury agree — agree upon a verdict. The

members of the jury agreeing upon a verdict

must sign their names to the form of verdict

to which they have agreed. The foreman or

forewoman need not be among the six jurors

have agreed to reach a verdict. When you have

reached and signed the verdict forms, you will

then summon the bailiff who will return you

the courtroom at which time your verdict will

be announced in open court.

The Court cannot embody all the law

in any single part of these instructions. In

considering one portion you must consider it

in light of and in harmony with all the other

instructions.

Circumstances in the case may arouse

sympathy for one party or the other. Sympathy

is a common human emotion. The law does

expect you to be free of such normal reaction.

However, the law and your oath as jurors

require that you disregard sympathy for either

party and not to permit it to influence your

verdict.

Your initial conduct upon entering

the jury room is a matter of importance. It

is not wise to immediately express a

determination insist upon a certain verdict

because your sense of pride may be aroused.

You may hesitate to give up your position if

shown that it is not correct. Consult with

one another in the jury room, deliberate with

a view to reaching an agreement if you can do

so without disturbing your individual

judgment. Each of you must decide this case

for yourself. You should do so only after a

discussion of the case with your fellow

jurors. Do not hesitate to change an opinion

if convinced it is wrong. However, you should

not surrender honest convictions concerning

the weight of the evidence in order to be

congenial or to reach a verdict solely because

of the opinion of the jurors.

Alternates. Jurors selected as

alternates are not permitted to participate in

the jury deliberations unless one or more of

the regular jurors is unable to complete the

service due to an illness or other misfortune.

We are pleased that that has not occurred in

this case, so it will not be necessary for you

gentlemen who served as alternates to

deliberate in this case. Even though you will

not be required to render further service in

this case, the Court must restrict you from

discussing this case with anyone or revealing

to anyone how you would have voted. After the

jury has returned its verdict and it is

announced in court, you will be released from

this restriction and at that time if you wish

you may discuss this case. On behalf of

myself, I’d like to thank you for the time and

attention and the sacrifice that both of you

made in regards to sitting as alternates in

this jury. If you provide your contact

information to my bailiff, he will be able to

contact you if you’d like to receive

information once a verdict is reached.

Final closing arguments. The Court

reminds you that the foreman and forewoman of

the jury will be responsible for the return to

the Court of the verdict forms and

interrogatories. Until your verdict is

announced in open court no juror is permitted

to disclose to anyone the status of your

deliberations or the nature of your verdict.

This order must be strictly obeyed. After

your verdict is returned and announced in

court you may discuss the case with anybody.

All right. You

(Thereupon, the jury began its

deliberations. )

(Thereupon, the following proceedings

were had out of the presence of the

jury.)

THE COURT:

may be seated.

If counsel for both parties can look

over the exhibits and make sure that the

proper exhibits that have been admitted into

evidence are there and give those to John and

nothing improper goes back and make sure that

the medical records are restamped as joint

You are not required to do so. It is a matter

of your own free choice.

I want to thank you and express my

appreciation, express the appreciation of the

citizens of this community for your service as

jurors. By providing this service, you have

contributed towards the continuing unique

system of justice that we enjoy in this

country.

Thank you very much. Ladies and

Gentlemen, all rise for the jury.

Thank you, Your

exhibits between the defense and the

plaintiff.

Is there anything else from the

parties?

MR. JONES: No, Your Honor.

MR. AUGUST: No, Your Honor.

THE COURT: All right .. I’d

like to take this opportunity to thank counsel

for their professionalism. And please provide

your contact information to John should there

be a question. We will get right up with you

if there is one.

MR. JONES:

MR. AUGUST: Thanks, Your

Honor.

(Thereupon, Court was adjourned.)

Honor.

THURSDAY, OCTOBER 6,2005

AFTERNOON SESSION

(Thereupon, the following

proceedings were had in open court

and in the presence of the jury.)

THE COURT: Okay. Good

afternoon, Ladies and Gentlemen. It’s my

understanding my bailiff has informed me you

have reached a verdict.

JURY FOREMAN: Yes.

THE COURT: Will the foreman

please hand the verdict forms over to John?

(Tendered.)

THE COURT: All right. With

respect to the interrogatories to the jury,

interrogatory number one: Has plaintiff,

Mr. Kamianka, proven by preponderance

of the evidence that defendant, Ken Little,

was negligent? The answer is no. This is

signed by all eight jurors.

Interrogatory number four: Has

plaintiff, Mr. Kamianka, proven by a

preponderance of the evidence that defendant,

Timothy Madison, was negligent? The answer is

no. This is signed by signed by seven jurors.

A general verdict form is signed in

favor of — indicating, we the jury being duly

impaneled upon the concurrence of the

undersigned jurors being not less than

three-fourths of the whole number thereof, do

hereby find in favor of defendant, Ken

Little, MO, and against the plaintiff, Mr.

Kamianka. This is signed by all eight jurors.

The second verdict form: We the jury

being dually impaneled and sworn upon the

concurrence of the undersigned jurors being

not less than three-fourths of the whole

number thereof do hereby find in favor of the

defendant, Timothy Madison, MO, and against the

plaintiff, Mr. Kamianka. This is signed

by seven jurors.

All right. Thank you very much,

Ladies and Gentlemen, for resolving this

matter. I’m going to dismiss you now. And if

you have any questions, I’ll meet with you in

the jury room. If you would like to go, I

understand that. You have put a lot of time

into this case. But on behalf of all my

colleagues down here at the Justice Center, I

want to thank you very much for resolving this

matter. And if you do have questions, I’ll be

happy to answer any in the back afterwards.

All rise for the jury.

One moment. Is there anything from

the parties in terms of polling?

MR. AUGUST: I was going to

ask for polling.

THE COURT: All right. I’m

going to ask Juror Number Number 1, is this

your verdict?

JUROR NO.1: Yes.

THE COURT: As to the

defense verdict for Ken Little, Juror Number

1, is this your verdict?

JUROR NO.1: Yes.

THE COURT: Juror Number 2?

JUROR NO.2: Yes.

THE COURT: Juror Number 3?

JUROR NO.3: Yes.

THE COURT: Juror Number 4?

JUROR NO.4: Yes.

THE COURT: Juror Number 5?

JUROR NO.5: Yes.

THE COURT: Juror Number 6?

JUROR NO.6: Yes.

THE COURT: Juror Number 7?

JUROR NO.7: Yes.

THE COURT: Juror Number 8?

JUROR NO.8: Yes.

THE COURT: All right. As

to the defense verdict in favor of Timothy

Madison, MD, against plaintiff, Mr.

Kamianka, Juror Number 1, is this your

verdict?

JUROR NO.1: Yes.

THE COURT: Juror Number 2,

is this your verdict?

JUROR NO.2: No.

THE COURT: Okay. Juror

Number 3,is this your verdict?

JUROR NO.3: Yes.

THE COURT: Your Number 4?

JUROR NO.4: Yes.

THE COURT: Juror Number 5?

JUROR NO.5: Yes.

THE COURT: Juror Number 6?

JUROR No.6: Yes.

THE COURT: Juror Number 7?

JUROR No.7: Yes.

THE COURT: All right. And

Juror Number 8?

JUROR NO.8: Yes.

THE COURT: All right.

Anything else from the parties?

MR. JONES: No, Your Honor.

MR. KANE: No, Your Honor.

MR. AUGUST: No, Your Honor.

THE COURT: Thank you

much.

All rise for the jury.

(Thereupon, the following

proceedings were had out of the

presence of the jury.)

THE COURT: Anything else

from the parties at this time?

MR. JONES: No, Your Honor.

MR. AUGUST: No, Your Honor.

MR. KANE: No, Your Honor.

THE COURT: All right.

Thank you very much.

(Thereupon, Court was adjourned.)

CERTIFICATE

I, Robert P. Man, Official

Court Reporter for the Court of Common

Pleas, Ohio, do hereby

certify that as such reporter I took down

in stenotype all of the proceedings had

said Court of Common Pleas in the

above-entitled cause; that I have

transcribed my said stenotype notes into

typewritten form, as appears in the

foregoing Transcript of Proceedings; that

said transcript is a complete record of

proceedings had in the trial of said cause

and constitutes a true and correct

Transcript of Proceedings had therein.

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