1 1 2 3 4 5 6 DAVID MARTINEZ, 7 8 vs. 9 BEAM BROS. TRUCKING, INC., a foreign corporation, and 10 WILLIE RATHBONE, an individual, 11 Defendants.

Plaintiff, IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 16-2006-CA-002915 DIVISION: CV-E

12 ----------------------------------------------------13 14 15 16 17 18 19 DATE: 20 TIME: 21 PLACE: 22 23 24 25 2 1 APPEARANCES: 2 HARRELL & HARRELL, P.A. 3 BY: SCOTT A. CLEARY, ESQUIRE 4735 Sunbeam Road REPORTER: Scribe Associates, Inc. 201 Southeast Second Avenue Suite 207 Gainesville, Florida Janet M. Alex, Notary Public State of Florida at Large 1:00 p.m. Friday, March 28, 2008 D E P O S I T I O N OF BRUCE A. GOLDBERGER, Ph.D., taken on behalf of the Plaintiff pursuant to a Notice of Taking Deposition.

4 Jacksonville, Florida 32257 (904)251-1111 5 Counsel for Plaintiff, 6 appearing via telephone. 7 ERIC M. ZIVITZ, ESQUIRE 8 80 Southwest 8th Street, Suite 3300 Miami, Florida 33130 9 Counsel for Defendants. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 WITNESS: 3 BRUCE A. GOLDBERGER, Ph.D. 4 DIRECT BY MR. CLEARY CROSS BY MR. ZIVITZ 5 REDIRECT BY MR. CLEARY RECROSS BY MR. ZIVITZ 6 FURTHER BY MR. CLEARY 7 PAGE 4 59 64 66 66 EXAMINATION INDEX

8 9 10 11 Plaintiff's 12 1 Correspondence 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 Thereupon, 2 BRUCE A. GOLDBERGER, Ph.D., . . . References a trail-off by the speaker. No testimony omitted. "Uh-huh" References an affirmative sound. "Huh-uh" References a negative sound. REPORTER'S KEY TO PUNCTUATION: -- At end of question or answer references interruption. 2 3 4 Nurse's note Excerpt of Phenytoin monograph Page 3 of Discharge Summary EXHIBIT INDEX MARKED 6 15 42 63

3 having been first duly sworn, was examined and testified 4 as follows: 5 6 BY MR. CLEARY: 7 8 9 10 Q. A. Q. A. State your name for the record, please. Bruce Goldberger. And, Dr. Goldberger, what is your profession? I'm a forensic toxicologist. DIRECT EXAMINATION

11

Q.

And how long have you been working in that

12 capacity? 13 A. Since October -- I'm sorry. Since 1982, so

14 it's been about 25 years. 15 Q. And the CV that's currently on your website,

16 is that current? 17 A. It is. I'm in the process of updating a new

18 version of it, because I submitted some papers for 19 publication, but that's very close. 20 Q. Any of the papers that are not listed on there

21 that you intend to put on that CV do you think are 22 relevant to this lawsuit? 23 24 25 A. Q. A. No, not at all. When were you first contacted? Mr. Zivitz' office contacted me November of 5 1 2006. 2 Q. And do you recall if there was a -- that was

3 from a phone call or a letter or how was the original 4 contact made? 5 A. The original contact would have been made by

6 phone. And I always ask to speak to my potential new 7 client, and I do that by phone, to get an understanding 8 of the case and then he or she, my new client, would 9 send me the records. And the letter that I have here 10 with me today shows that the first pack of materials 11 were sent to me on November 9th of 2006. 12 Q. Okay. And, Doctor, just so we don't have to

13 attach the whole record, I was just going to go ahead 14 and confirm what it is that you've looked at. Okay?

15 16

A. Q.

Okay. If you would, just give me a shopping list of

17 the records that you looked at, Doctor. 18 A. Okay. Palm Coast Eye Physician; Neurology

19 Associates of Ormond Beach; Palm Coast Family Medicine, 20 Dr. Trina Martin; Flagler Hospital, Dr. Phillip 21 Villanueva; Florida Hospital, Flagler; Alter 22 Orthopedics; Mr. Martinez' deposition, which included a 23 video CD; Gigi Gomez' deposition, which also included a 24 video CD; a report from Dr. Gerling, and I have records 25 from Dr. Roberts, and that's it. 6 1 Q. Okay. And did you write on any of those

2 documents that you received? 3 4 5 6 7 8 9 A. No, I didn't. MR. CLEARY: Okay. I think all I'm going to do is as Plaintiff's Exhibit No. 1 we'll attach just the correspondence, which I trust outlines all those documents that you reviewed. THE WITNESS: It does, except for the last one I mentioned, which was e-mailed to me last week.

10 BY MR. CLEARY: 11 12 Q. A. Roberts' records? Yes, and it was e-mailed as a PDF, so I just

13 printed it out at home. 14 Q. And they were his records or was it his

15 deposition or both? 16 A. It's just the records, and it's about 40

17 pages.

18

Q.

Okay. Did you subsequently, and by that I

19 mean like today, receive any other documents for 20 consideration? 21 22 A. Q. No. Okay. So we've identified all the documents

23 that you reviewed; is that right? 24 25 A. Q. That's right. And I think you previously stated that you did 7 1 not prepare a report. 2 3 A. Q. Correct. And are there any, like, PDIs or any type of

4 drug information upon which you're relying? 5 6 A. Q. No. I don't need to. Okay. What authoritative source or

7 information regarding the particular side effects and/or 8 effects of drugs that are the subject of your inquiry do 9 you rely upon? 10 11 A. Q. Well -I know that you have your own knowledge that

12 you've obtained through the course of your education and 13 employment, but is there a particular text that you 14 think is the Bible for explaining the effects of various 15 medications? 16 A. Besides the Physician's Desk Reference, which

17 I don't consider to be authoritative but it is 18 informative, there's a book, and I do have it with me 19 today but I don't plan on referring to it unless you ask 20 me, say, a half-life of a particular drug or a blood 21 level of a particular drug. It's called "Drug Effects

22 on Psychomotor Performance," and it's edited by Randall 23 Baselt. 24 25 Q. A. Drug Effects on Psycho --- motor Performance, Randall Baselt. As I 8 1 said, I don't expect to refer to it unless you ask me a 2 question I can't answer, but I am principally just going 3 to refer to my training and experience -4 5 6 7 8 9 10 Q. A. Q. A. Q. A. Q. Okay. -- that I've obtained over the years. How do you spell Baselt? I'm sorry. How do you spell Baselt? B-A-S-E-L-T. All right. Do you recall what the -- the

11 discussion was during that original phone call? 12 13 14 15 A. Q. A. Q. Not exactly, no. Okay. Did you keep any notes from it? No. And what is your understanding -- and I know

16 it's kind of you reflecting back, but what was your 17 understanding of what Mr. Zivitz wanted you to do in 18 this case? 19 A. I'd say several things, one of which is to

20 serve as an informational resource for him in the case 21 regarding the psychomotor effects of several of the 22 medications that Mr. Martinez was on. 23 The next job for me would be to help him

24 understand further the dynamics of the crash that

25 occurred several years ago involving Mr. Martinez; and 9 1 finally, to provide information regarding these drugs 2 and their ability to impair one's cognition, psychomotor 3 performance and so on. 4 5 6 Q. A. Q. Okay. I think that covers it all. All right. How much do you charge for your

7 services? 8 A. My fee for retention in a matter within the

9 state of Florida is $1,250. That includes three hours 10 of consultation, and every hour beyond the three hours 11 is billed at a rate of $300 per hour. Appearance at 12 trial is $1,500 per day, plus travel expenses. 13 Q. Okay. And how many additional hours over and

14 above that original retainer of $1,250 have you obtained 15 to date? 16 17 A. Q. It's about one to two hours. And I think it's safe to say, Doctor, that you

18 provide testimony on behalf of plaintiffs and defendants 19 in civil lawsuits; is that right? 20 21 A. Q. Yes, I do. Have you ever ventured to determine how much

22 you do for each particular side? 23 A. I'd say my current rate right now is about 10

24 percent plaintiff, 90 percent defendant, and that's in 25 civil matters, of course. 10 1 Q. And you said you think you've had an

2 additional one to two hours? 3 4 A. Q. Yes. Okay. And then do you primarily testify for

5 the prosecution now in criminal cases? 6 A. Yes, but not always. From time to time the

7 defense will call me in as an expert. Actually just 8 last week I did that. 9 Q. Okay. But it's primarily for the prosecution;

10 is that right? 11 A. That's right. And most of those cases would

12 be cases where a driver is being prosecuted for driving 13 while under the influence of alcohol and/or drugs. 14 Q. Okay. And I heard something about you perhaps

15 now working with the FDLE. 16 A. I've been working with the FDLE for about 10

17 years -18 19 Q. A. Okay. -- in a variety of capacities. The current

20 relationship I have with FDLE is the university provides 21 the quarterly proficiency samples for the alcohol 22 testing program, and we're compensated for that. 23 Q. Okay. You've reached certain opinions in this

24 case. Can you tell me what they are? 25 A. Sure. Do you want me to just start now? 11 1 2 Q. A. Yes. Okay. It's a little difficult just to spit

3 out my opinions without having directed questions, but 4 I'll try to do it, then I'm sure you'll follow up -5 Q. I'll go down and break down, you know, what

6 the basis is for each opinion, but if you kind of, you 7 know, made an outline of what they are, that would be 8 helpful. 9 A. Yeah. Okay. Because I think what I need to

10 do first is outline some of the facts. 11 Q. Why don't you tell me the facts that you felt

12 were germane to your investigation. 13 A. Okay. So some of the facts would include

14 Mr. Martinez's serious brain injury from 2001, I 15 believe -16 17 18 Q. A. Okay. -- and the effects of that brain injury. Second is he was involved in a motor vehicle

19 crash February of 2006 where his vehicle drove into the 20 side of a tractor-trailer truck and he was injured. 21 22 Q. A. Okay. The next fact, which I received from

23 Mr. Zivitz, is based on his accident reconstruction 24 expert. They have drawn the opinion that Mr. Martinez 25 had sufficient time to slow his vehicle from the time 12 1 that he had a view of it to the time that he collided 2 with it, and that although maybe he wouldn't have been 3 able to avoid the collision, he would have been slowed 4 to a great degree. 5 Another fact would be that Mr. Martinez, as a

6 result of his previous head injury, is on seven 7 medications, or he was on these medications in February 8 of 2006. These are listed on the emergency nursing

9 assessment record from Flagler Hospital. The 10 medications include Tegretol, propranolol, Zoloft, 11 Aricept, Dilantin, Asacol, A-S-A-C-O-L, and amantadine. 12 Q. Okay. Any other facts that you took into

13 consideration? 14 A. The last and I think a very important, I

15 think, set of facts is information that I gleaned from 16 Mr. Martinez's deposition, both the factual information 17 that was provided as well as his presentation at 18 deposition. 19 20 21 22 23 Q. A. Q. A. Q. Did you actually watch a video depo of him? I did. Okay. So the -Not only the substance of his testimony but

24 actually the -- his appearance? 25 A. Correct. 13 1 2 Q. A. Okay. Correct. So it's probably simplest to talk

3 about the substance first. 4 5 Q. A. Okay. And based on my reading and viewing of the

6 deposition, it's apparent to me that Mr. Martinez is a 7 very poor historian and he provided contrary facts 8 throughout the deposition. 9 For example, there was a question regarding

10 his taking of medication, and he said something that he 11 couldn't take them all at one time and he chuckled about 12 that. And then about five minutes later in the

13 deposition he stated that he would wake up around seven 14 in the morning; he would eat right away and then take 15 his meds. 16 So I don't think he was lying; I think it's

17 just his inability to understand the questions and 18 process the information and respond to Mr. Zivitz' 19 questions. So it was -- I'm not claiming that he was a 20 liar. I'm just claiming that he has some issues with 21 the way that he presents himself. 22 23 Q. A. Okay. So his presentation on the tape during the

24 deposition comes across as someone who is obviously 25 disabled, but I'd also use the term that he seems to be 14 1 impaired, and his impairment is due in part to his head 2 injury, and, assuming that he's taking the same 3 medications then as he did back in 2006, his, say, 4 slowed responses or inability to concentrate may also be 5 due to the medications that he's taking. He is taking a 6 wide range of medications and at least four, maybe five 7 of them have central nervous system action. 8 So I think I've covered everything, and I'm

9 sure we'll now start to pick through it and -10 11 Q. A. That's fine. -- if I forgot something I'll let you know.

12 So I'm going to pass it back to you. 13 Q. Okay. The information that you relied upon

14 regarding what he was taking on the date of the 15 accident, I think you said earlier came out of the

16 Flagler nursing note. Page 1; is that right? 17 18 A. Q. Yes. Okay. And the drugs were Tegretol, propendol

19 (phonetic) -20 21 A. Q. Propranolol. Propranolol, Zoloft, Aricept, Dilantin, Asacol

22 and Amantadine; is that right? 23 24 A. Q. That's right. And were you ever able to confirm whether or

25 not the dosages that were identified in that document -15 1 2 3 4 5 6 7 8 9 10 11 MR. CLEARY: And just for the sake of simplicity, Madam Court Reporter, we're going to call that nurse's note, that one-page document Plaintiff's Exhibit No. 2. THE WITNESS: I assume No. 1 will be the correspondence. MR. CLEARY: That's right. I think I previously identified that as such on the record. THE WITNESS: Right. MR. CLEARY: That is correct. THE WITNESS: Okay. We got that.

12 BY MR. CLEARY: 13 Q. And the information came from that note; is

14 that right? 15 16 A. Q. That's correct. -- an assumption you made, that he was on

17 those drugs at that time? 18 19 A. Q. That's correct. That's correct? Doctor?

20 21 22

A. Q.

Yes. Yes, Scott. I'm sorry. And as far as the dosages go, do you know if

23 there was any confirmation by some kind of diagnostic 24 test about whether or not he -- for instance, the 25 Tegretol, it references 200 milligrams and it looks like 16 1 he takes two tablets four times a day; is that right? 2 3 A. Q. Yes. Okay. Do you know if at the time of the

4 accident he had, you know, his whole daily dose in him? 5 A. Well, he wouldn't have the whole daily dose,

6 but assuming that he's taking it four times a day, he 7 may have some from the day before and then certainly the 8 dose from the morning. It's not clear, and he couldn't 9 recall exactly what time he took it that day. 10 Q. Does that have any effect on your opinions

11 about just how high a dose he had in him at the moment 12 of impact? And that's with regard to Tegretol. 13 A. We don't know exactly how much he had in his

14 bloodstream at the time of the crash. There was no 15 blood test for the Tegretol, so we couldn't say whether 16 he was below therapeutic, therapeutic, or above 17 therapeutic. 18 Q. And what is the distinction between those

19 three levels? 20 A. Well, below therapeutic might indicate that

21 he's out of compliance with the medication, so he's not 22 following the instructions provided to him by the

23 physician. 24 Q. Which might have been the case in light of the

25 fact that you earlier said that he has a problem with 17 1 slow responses and inability to concentrate? 2 3 4 A. Q. A. Yes. That's a possibility. Okay. Or if he's within the therapeutic range, that

5 would be desirable as a means to control his seizure 6 disorder. And if he's too high, again, it might be that 7 he's not complying with the physician or he may be 8 taking too much and there may be a metabolic reason for 9 that. 10 Q. Now, as far as the psychomotor effects of

11 these drugs, I would imagine the more you take, the more 12 an impact there is on your psychomotor function; is that 13 right? 14 15 drug. 16 Q. Okay. With regard to Tegretol, what type of A. Yes. You could actually overdose from this

17 effects does the average person experience as a result 18 of Tegretol use? 19 20 21 22 23 24 25 MR. ZIVITZ: Object to form. You can answer. THE WITNESS: If he's out of compliance, that is, too low or too high or there's a wide range in the blood levels across the day, there could be some sedating effect. It could produce dizziness or fatigue. If the levels are high, it could produce

18 1 2 3 4 confusion, headaches, even slurred speech. So it is a drug that should be taken in accordance with a physician's instructions. It's one that you'd most certainly want to comply with as best you can.

5 BY MR. CLEARY: 6 Q. Why would an average patient experience a

7 sedative-like effect, dizziness or fatigue, if they have 8 just a minor amount? 9 A. Well, what I said is if he's not in

10 compliance, he may experience the lows and the highs and 11 have the inability to accommodate the drug levels in the 12 body. 13 So one possibility is if he's too low, his

14 seizure threshold may be effected to the degree that he 15 may have a seizure, of course. No evidence here that he 16 had a seizure. 17 18 Q. A. Okay. But if the concentrations are too low, he may

19 have a seizure. If the -20 Q. That opinion that there's no evidence of any

21 seizure, is that your opinion within a reasonable degree 22 of medical certainty? 23 24 25 MR. ZIVITZ: Object to form. He's not a medical doctor. MR. CLEARY: Well, he just offered the opinion 19 1 2 or a conclusion that he didn't feel there was a seizure that occurred.

3 BY MR. CLEARY:

4 5

Q. A.

Is that your conclusion, Doctor? I saw no evidence in the medical record that

6 he had a seizure. 7 8 Q. A. Okay. I mean, I don't think it can be ruled out, but

9 there's certainly no information in the medical record 10 to support that he did have a seizure. 11 Q. What is Tegretol -- what's the purpose of

12 taking that, for this particular patient? 13 A. To treat his seizure disorder associated with

14 his brain injury. 15 16 Q. A. How is that different from the Dilantin? It's not different at all. Now, Tegretol can

17 also be used to treat bipolar disorder, but I don't 18 think he exhibited symptoms of bipolar disorder. He had 19 the depression but no evidence of bipolar disorder. So 20 the Tegretol and the Phenytoin are two very commonly 21 used antiseizure medications. 22 Q. Okay. Well, do you have any idea as to why he

23 was taking both Tegretol and Dilantin if they both are 24 designed to deal with the seizure disorder? 25 A. Yes. It's not uncommon that, if you have 20 1 someone who has a seizure disorder and the origins of 2 those disorders may be very complex, particularly in 3 someone with a head injury, that you'd have to treat 4 someone with multiple medications to control the 5 seizures. So from day -- every day in my laboratory 6 with the medical examiner work that we do, we'll see

7 patients that take multiple antiseizure meds as a means 8 to control their seizure disorder, so it's commonplace. 9 Q. In other words, where they take more than one

10 in case one doesn't work, the other one might kind of 11 thing? 12 13 14 A. Q. A. Yes, or they work together. Okay. Because essentially what you want to do is to

15 keep the seizure threshold under control, because if you 16 go beyond that threshold, then you have a seizure. 17 Q. Based upon your review of the records, did you

18 see any evidence that his seizure disorder was a chronic 19 problem for him? And by that I mean was there any 20 evidence that he was experiencing seizures despite the 21 use of medication in the year leading up to the 22 accident? 23 A. I believe I read some information that he had

24 had seizures but they were infrequent. I don't know 25 where I could point to that right now specifically in 21 1 the record, but my recollection and I think even some of 2 the testimony was that he was having a seizure every 3 once in a while, like once a year, I think is what Gomez 4 said, actually. 5 Q. All right. You mentioned earlier about a

6 half-life, and I think you used another term of art with 7 regard to medications and the PDR. 8 9 10 A. Q. A. Oh, I can't remember what I used. Okay. What does half-life refer to? Half-life is basically the measure of time

11 that it takes to go from one blood concentration to half 12 of that blood drug concentration, so it's a measure of 13 metabolism and elimination from the body. 14 Q. Okay. How does that apply, if at all, to

15 Tegretol? 16 A. Well, it doesn't really apply to my opinions

17 at all in this case. 18 19 Q. A. Okay. It is an important fact when you're monitoring

20 someone on these types of drugs, and if you look through 21 the medical records you'll see that some of the 22 physicians were monitoring his Phenytoin and Tegretol 23 levels, and there was a time in there where I think they 24 had to increase one of the medications because -- I 25 think it was Tegretol because the blood level was too 22 1 low. 2 3 Q. A. Okay. So that's something that's done on a -- should

4 be done on a regular basis to keep them within a 5 therapeutic concentration range, but you have issues, 6 like patient compliance as well as metabolic issues, 7 especially in someone who is on so many medications. 8 There are drug interactions that have to be dealt with. 9 Q. Was there an issue, based upon your review of

10 the records, of this patient complying with his doctor's 11 instructions to take these medications? 12 A. I'm only concerned about the fact that he

13 seems to be a poor historian. So when you comply with

14 the medication, you have to be sure that you take it in 15 accordance with the physician's instructions. My wife, 16 for example, is on multiple medications, and even in 17 a -- she's not affected like Mr. Martinez is, but she 18 has to have one of those little plastic pill holders, 19 and she has one for the morning and one for the evening, 20 and that's the only way that she can be sure to keep 21 everything straight. 22 23 Q. A. Okay. It's -- no, with multiple medications, it's

24 very hard to keep those things straight. 25 Q. Okay. Well, I'm just wondering if any 23 1 physician that's been treating him for his head injury 2 and seizure disorder has made any comment in any of the 3 records that you reviewed that he didn't appear to be 4 complying. 5 6 A. Q. I didn't see anything. Okay. How, if at all, do you think that use

7 of the Tegretol affected this gentleman in the operation 8 of his motor vehicle on the date the accident occurred? 9 A. Well, my concern regarding the medications is

10 the -11 12 13 Q. A. Q. Global affect of them all? Yes. That's it. Okay. So you're not going to testify about

14 the significance of his impaired psychomotor function as 15 to each respective one, but with regard to all of them 16 taken together? 17 A. That's correct. Trying to --

18 19 20

Q. A. Q.

Total of them all? Yes. Yes. You mentioned that five of them affected the

21 nervous system? 22 A. Let's go through them. The Tegretol, the

23 Propranolol, the Zoloft, the Aricept and the Amantadine, 24 so there's five. Is that right? I might be missing one 25 here. 24 1 2 Q. A. You've got Dilantin and Asacol. Oh, and -- yeah, and Dilantin, so there's six.

3 The -4 5 6 7 Q. A. Q. A. The Asacol, what's that for? That's a GI medication. Okay. So I don't think it has, at least, an effect

8 on the brain. It probably has a CNS effect but it's not 9 going to be directly on the brain, not in relation to 10 impairment. 11 Q. Have we addressed all the effects of the

12 Tegretol? 13 14 A. Q. More or less, yes. Okay. I mean, you told me the high and the

15 low. Any other effects that you consider significant to 16 your opinions in this case? 17 A. No. And I would say that all of these drugs,

18 especially the Tegretol, the Propranolol, the Dilantin 19 are drugs that if you don't comply with well, and thus 20 you're having a difficult time in maintaining tolerance

21 to the side effects of those drugs, can produce central 22 nervous system depression, so that's the dizziness, the 23 fatigue, the sluggish responses, the possibly slurred 24 speech. Those are the depressant effects that you can 25 see in patients that are taking these drugs and aren't 25 1 complying or have issues, such as metabolic issues, 2 where you have elevated levels inadvertently. 3 Q. Metabolic meaning they're eliminating them too

4 fast or too slow? 5 A. Sometimes both, but most serious drug

6 interactions are when one drug or combination of drugs 7 affects the metabolism of another drug, reducing its 8 ability to be eliminated. So there have been cases of 9 drug overdoses where the combination of the drugs taken 10 results in an overdose because of the metabolic 11 interplay between the drugs. 12 13 Q. A. Okay. That leads to a discussion of personalized

14 medicine, which we won't deal with today, but in years 15 to come when we meet with our physicians, they may take 16 a blood test or run a blood test on us to personalize 17 our medicine so we don't have drug interactions. 18 Q. Do you have any opinions within a reasonable

19 degree of medical certainty about whether or not -- or 20 strike that -- reasonable toxicological -21 22 A. Q. Toxicological. -- toxicological certainty that there was any

23 type of metabolic interplay involved in this case? 24 A. None that I can point to with the use of a lab

25 test. 26 1 Q. Okay. You could speculate that there might

2 have been some kind of metabolic interplay, but you 3 don't have any scientific basis to confirm the same; is 4 that correct? 5 A. That's correct, and I used the metabolic

6 interplay as one possibility. 7 8 9 Q. A. Q. Okay. Propranolol. Yes. What type of side effects does that have, high

10 and low? 11 A. Well, in terms of low, probably no effect, but

12 if you take too much of it, it can cause a slowed heart 13 rate, a low blood pressure. It's a -- this drug is used 14 to treat hypertension, but it has other effects too. 15 For example, you can treat headaches with it, and I 16 understand that Mr. Martinez had headaches, so -17 18 19 20 Q. A. Q. A. Do you know what he was being given it for? I don't know. Okay. He does have high blood pressure on this

21 nursing assessment sheet. At least he's got a 144 over 22 78, so it's borderline hypertensive. That may just be a 23 result of some anxiety at that time at the hospital. So 24 I don't know if he's being treated with it for 25 hypertension or for headaches or maybe a combination, or 27 1 maybe some other off-labeled reason, which oftentimes

2 they do in complicated patients like him. 3 Q. None of the records that you reviewed indicate

4 what that was prescribed for; is that right? 5 A. Not that I saw where so-and-so doctor said,

6 "I'm going to administer Propranolol to treat this" -7 8 Q. A. Okay. -- not in any of the records that I focused my

9 efforts on. 10 11 Q. A. Okay. So -But I think I need to go back and finish

12 answering that initial question, what can it do. And it 13 can cause some mental depression, lightheadedness, a 14 slowed heart rate, the lower blood pressure. So those 15 are some of the effects that it could produce in someone 16 if they're not in compliance with the medications or if 17 there is metabolic interplay between all these meds that 18 he's taking. 19 Q. Okay. And again, you don't know if this

20 particular individual suffered some or all of those 21 effects; is that right? 22 23 A. Q. That's correct. Okay. Is that your opinion within a

24 reasonable degree of toxicological certainty? 25 A. Yes. And I still have to deal with and 28 1 emphasize the importance of the impression that I had 2 watching him on the tape. 3 4 Q. A. And we'll get to that. Okay.

Q.

Have we addressed not only the side effects of

6 this particular drug but any other things that you found 7 significant about his use of that drug? 8 9 10 A. Q. A. Yes. Okay. How about the Zoloft? The Zoloft is a drug that is generally

11 tolerated well. It may have some sedative effect upon 12 initiation of its therapy, but if taken in small doses 13 it has little side effect when used alone or even in 14 combination with a drug. This is not a major player, in 15 my opinion. 16 Q. Okay. So you don't think that this drug

17 really played a big role in impairing this individual's 18 psychomotor performance; is that right? 19 A. Probably not. Just keep in mind that it is a

20 CNS active drug and has the potential for this interplay 21 within the brain, but he's taking a typical dose once a 22 day to treat his depression. 23 Q. And based upon the records you reviewed,

24 there's no way for us to determine whether or not he 25 took that the morning of the accident or not; is that 29 1 right? 2 3 A. Q. That's correct. Okay. And the Propranolol, that apparently

4 was 10 milligrams two times daily; is that right? 5 6 A. Q. Yes. And again, there's no definitive evidence

7 about whether or not he did or did not take one, two or 8 none on the date this accident occurred; is that right?

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. ZIVITZ: Object to form. What do you mean by "definitive," other than what he said in his deposition? MR. CLEARY: It's my understanding what was said at the deposition is that this is what he took daily, but I don't know if there was any definitive testimony from anyone that he -- you know, he complied with his daily ritual of taking the medications as prescribed. MR. ZIVITZ: Yeah, he said in his deposition he took them that morning. MR. CLEARY: Okay. THE WITNESS: And Gomez said that he would take his meds in the morning. She didn't -- she wasn't there when he would take his meds, but she said that he would take them. MR. ZIVITZ: Yes. He said he had his, like, 30

1 2

Quaker Oats or whatever, then took his pills, then went to the gym.

3 BY MR. CLEARY: 4 Q. Okay. So we've addressed Zoloft. You

5 previously said you didn't think it was a big player in 6 this case. 7 8 9 A. Q. A. That's correct. Okay. What about the Aricept? First let's talk about what Aricept is, and

10 Aricept is a medication used to treat dementia 11 associated with Alzheimer's. So obviously this

12 medication in Mr. Martinez is an off-labeled use, or, 13 wouldn't say experimental, but not approved by the FDA. 14 15 Q. A. Okay. There really is very little information in the

16 literature regarding its adverse effects. My 17 understanding is it's a relatively safe drug, but it is 18 a CNS active drug because it's used for the treatment of 19 dementia. So probably not a major player but one that 20 we shouldn't just throw away. 21 Q. Do you have any opinions regarding what

22 metabolic interplay there is between the Aricept and the 23 Tegretol and Propranolol? 24 25 A. Q. No. I don't know. Okay. Dilantin? 31 1 A. Dilantin is otherwise known as phenytoin.

2 That's the other antiseizure medication we spoke about a 3 few minutes ago. It also has central nervous system 4 depressant effects when it's not taken in compliance; 5 that is, when it's -- when too much is taken or the 6 blood levels reach levels that are too high. Or you 7 wouldn't necessarily reach too high levels always 8 because you take too much, like an overdose setting, but 9 it could be because of the metabolic interplay that you 10 could have elevated levels because of the competing 11 metabolic interplay. 12 Q. Okay. But those problems -- it's not a

13 problem if you don't take enough, is that right, develop 14 some kind of interplay? 15 A. Right. If you don't take enough, then you

16 would have a risk for seizure. 17 Q. Okay. Are there any of the other drugs that

18 we've referenced that you think placed this gentleman at 19 risk of some type of metabolic interplay? 20 A. Well, metabolically -- well, of course, he's

21 taking the Amantadine. Amantadine is a drug that's used 22 for prophylaxis of treatment of signs and symptoms of 23 influenza infection, Influenza-A virus, but it's also 24 used more commonly to treat Parkinson's disease. Again, 25 I think this is an off-labeled use of this drug in 32 1 Mr. Martinez to assist in the treatment of his serious 2 head injury. 3 Q. Is there literature on the dangers of taking

4 too much or too little of this drug or metabolic 5 interplay? 6 A. Metabolic interplay, I'm sure there's some.

7 Of course, I don't have any evidence because there's no 8 drug test for Amantadine. If you do take too much, it 9 also has some depressant effect, but it's a drug that is 10 more or less tolerated fairly well. 11 Q. Would you -- in light of that conclusion is it

12 your opinion that you don't think it was a major player 13 in the case as well? 14 15 A. Q. The Amantadine, yes. And again, we're assuming that he took at

16 least one dose on the date the accident occurred; is 17 that right? 18 A. Yes, but when you do take drugs on a regular

19 basis, obviously you have those drugs in your 20 bloodstream. 21 22 23 24 25 Q. A. Q. A. Q. Sure. They don't go away in a day. Sure. They usually persist. And what about the -- have we exhausted the 33 1 Dilantin? You pretty much said too much taken, the 2 central nervous depressive type effects, similar to what 3 you described for the Tegretol. And again, if you don't 4 take enough, you could be at risk of seizure. Is that 5 right, that's the high and the low possibilities? 6 7 8 A. Q. A. Yes. Okay. And what about the Asacol? I don't think it factors here at all, other

9 than the potential for -10 11 Q. A. That's the GI? Right. Other than the potential for a

12 metabolic interplay, it doesn't have a direct CNS 13 depressant effect like some of the other drugs do. 14 Q. Okay. Does food play a role in affecting or

15 impacting the effects of any of these medications? 16 17 A. Q. No, not really. Okay. I mean, you know, it's kind of an

18 alcohol question. I mean, the testimony, I think, of a 19 lot of toxicologists is, you know, the impact of alcohol 20 on your nervous system can be impacted by how much you 21 ate and what you ate, et cetera. Does that hold true 22 for any of these medications?

23

A.

Well, the fact that if you take these

24 medications on a full stomach, they'll be absorbed at a 25 slower rate than if you took them on an empty stomach. 34 1 2 3 4 5 Q. A. Q. A. Q. And how would that affect function? I wouldn't say it has any major effect at all. Okay. With alcohol it's quite different. Okay. You don't have to get into a discussion

6 about that because there's no evidence the guy had any 7 alcohol; is that right? 8 A. Well, there was no alcohol or drug test, but

9 there's no evidence that he was consuming alcohol or 10 taking illicit drugs either. 11 Q. Okay. What role, if any, does tolerance play

12 on the effects of these medications? 13 A. If he is fully compliant with the

14 medications, then one would expect him to be tolerant to 15 the side effects, so -16 Q. Is that your opinion within a reasonable

17 degree of toxicological certainty? 18 19 A. Q. Yes. And I'm not asking you to grade the tolerance,

20 just that if they're compliant, it's generally accepted 21 that there is some level of tolerance from taking it 22 over a period of time; is that right? 23 24 A. Q. Yes. That's correct. Okay. And when you are tolerant to these

25 types of drugs that you think were -- or did have an

35 1 impact in this accident, how does that tolerance 2 manifest itself? 3 A. Well, the impairing effects dissipate, so say

4 the slowed speech or the fatigue or the dizziness, those 5 types of effects will dissipate. 6 7 Q. A. Okay. So just like when you start taking a

8 medication like these, the first couple days you might 9 feel a bit off until the tolerance begins to take 10 effect. 11 Q. How long had Mr. Martinez been taking all

12 these medications, if you know? 13 A. I don't know exactly which combination and for

14 how long, but presumably he's been on antiseizure meds 15 ever since he injured himself back in 2001. 16 Q. Okay. So you would expect Mr. Martinez to

17 enjoy some type of tolerance effect of these 18 medications; is that right? 19 20 A. Q. If he's compliant. Okay. If you assume he's compliant, would you

21 or would you not expect him to reap the benefits of some 22 added tolerance to this medication? 23 24 A. Q. Possibly. Is there any way for you to quantify how much

25 tolerance Mr. Martinez had for each respective 36 1 medication? 2 A. No. That's not possible.

Q.

Okay. Have you been able to glean from the

4 review of the depositions that you looked at whether or 5 not Mr. Martinez did experience some degree of tolerance 6 to the medications? 7 8 A. Q. I have no idea. Have you ever performed any

9 perception-reaction tests? 10 11 A. Q. No, not personally. And that would be with or without medication;

12 is that right? 13 14 A. Q. That's correct. You were going to offer opinions about -- I

15 guess in general that these drugs, either by themselves 16 or in conjunction with one another can have an effect on 17 the psychomotor performance; is that right? 18 A. Yes, but with an added feature, which would be

19 his preexisting head injury. 20 21 22 23 24 Q. A. Q. A. Q. Okay. Because I think that can't be eliminated. Okay. One possibility is that -Not going to put a time of -- you know, you're

25 not going to opine how much his reactions were delayed 37 1 by virtue of the use of the medication and the effects 2 of his preexisting head injury, are you? 3 4 5 6 MR. ZIVITZ: Object to form. THE WITNESS: No. And as you know, that's even difficult to do in a relatively simple alcohol case.

7 8 9 10 11

MR. CLEARY: Okay. THE WITNESS: You know, we can talk in -- we can talk numbers and theory with alcohol, but that becomes a very difficult thing to do, practically, in a case involving alcohol.

12 BY MR. CLEARY: 13 14 Q. A. Why is that? Because there are so many factors that have to

15 be taken into consideration, and while studies have 16 shown specific quantitative decrements associated with 17 alcohol concentrations in the blood, when you go to 18 apply that in the real world, it becomes difficult. So 19 what you have to do is look at the reconstruction of the 20 crash and determine if there were any specific reasons 21 for the crash, and if there weren't, then we have to 22 look at other factors, such as drug or alcohol 23 impairment. 24 Q. What factors or variables are there when

25 addressing the relative effects of these types of drugs 38 1 on an individual? 2 A. Well, one is what drugs are being taken; when

3 they were taken; are they taken within compliance. 4 We've talked about this already. 5 6 Q. A. Uh-huh. What is the baseline cognitive and psychomotor

7 performance abilities of the driver; environmental 8 factors, such as weather, time of day, speed, the 9 vehicles involved. Obviously some of this goes towards

10 the -- I would defer to the engineering expert. 11 12 Q. A. Okay. Fatigue, general fatigue is a factor. Highway

13 Patrol would take that under consideration in their 14 workup of a serious case. 15 16 Q. A. Anything else? I'm sure there's others, but that would be

17 what comes to my mind right now. 18 Q. It's true, is it not, that obviously the

19 relative effects of these different medications differs 20 from person to person? 21 22 A. Q. Of course. Okay. You have not had a chance to look at

23 any accident scene photos, have you? 24 25 A. What did you say at the end there? MR. ZIVITZ: Accident scene photos. 39 1 2 3 4 5 6 7 8 MR. CLEARY: Accident scene photos. THE WITNESS: I do have them attached to -MR. ZIVITZ: Martinez' deposition. THE WITNESS: -- Martinez' and Gomez' deposition. MR. CLEARY: Okay. THE WITNESS: They're photocopies of photos, so they're a little hard to see, but --

9 BY MR. CLEARY: 10 Q. Well, did you rely upon those photographs for

11 any of your opinions that you reached in this case? 12 13 A. Q. No, not at all. Okay.

14 15

A. Q.

Not necessary. And you have not read the deposition of the

16 accident reconstruction expert, Mr. Fogerty, is that 17 right, or Dr. Fogerty? 18 19 A. Q. No, I haven't. And you just assumed that this tractor-trailer

20 took a real slow, deliberate path across the lanes of 21 traffic where this accident occurred or have you not 22 even taken into consideration any of the dynamics of the 23 accident in reaching your opinion? 24 A. The only dynamic that I've taken into

25 consideration is what Mr. Zivitz told me, which was one 40 1 of the conclusions of his expert reconstruction person, 2 that there was adequate time to slow the vehicle prior 3 to collision. 4 Q. Obviously, if there was -- if there's a

5 dispute in the record about how much time there was to 6 respond, that would affect your opinions, wouldn't it, 7 Doc? Do you understand the question? 8 9 10 yeah. A. Oh, yeah. I mean -MR. ZIVITZ: If you alter the hypothetical,

11 BY MR. CLEARY: 12 Q. Yeah, and that's what I'm asking you, if the

13 hypothetical is this woman was -- this tractor-trailer 14 never stopped but made a continuous turn, and once its 15 nose began violating the right-of-way of the left lane 16 in which my client was driving, he had seconds to

17 respond, obviously if that were the facts in the case, 18 your opinions would change regarding the effect, if any, 19 of these medications on Mr. Martinez' psychomotor 20 performance; is that right? 21 22 23 24 25 MR. ZIVITZ: Object to form. Assumes facts not in evidence. MR. CLEARY: You can answer the question. THE WITNESS: I'd only ask that -- my opinions are connected with Mr. Zivitz' other experts. I 41 1 2 3 4 5 6 7 8 9 don't think that I can answer every question in the case as his expert who reconstructed the accident can't answer all the questions on his side. MR. CLEARY: Okay. THE WITNESS: So it's just important to connect the dots or put everything together. You know, that's why there's multiple experts involved in cases like this, because we're not all -- you know, we don't know everything.

10 BY MR. CLEARY: 11 Q. Okay. Are you aware of any recommendations by

12 any of the plaintiff's treating doctors regarding his 13 operation of a motor vehicle while under the influence 14 of the medications? 15 A. No. Now, keep in mind that the bottles

16 themselves may be labeled with comments, such as, 17 "Caution while driving a motor vehicle or operating 18 heavy machinery." So those -19 Q. Do you know if the PDR or whatever source upon

20 which you're relying -- and just so I -- I got that --

21 that name of that book was Drug Effects on Psychomotor 22 -23 24 A. Q. Performance. Performance. Okay. by Randall Baselt. Does

25 that book, or any other authoritative text that you have 42 1 reviewed, address whether or not the use of any of these 2 medications would present a risk to operating a motor 3 vehicle? 4 5 6 A. Q. A. It does, as a matter of fact, so I -Which one? I'll pick the -- I've opened up to the

7 phenytoin monograph, and I'll read this to you, under 8 "Conclusions." 9 Q. You've opened up what? Is this in the book

10 that you have? 11 12 13 14 15 16 A. Yes. MR. ZIVITZ: What page are you on? THE WITNESS: Page 339. MR. CLEARY: Can we just put that page as Plaintiff's Exhibit No. 3, please? THE WITNESS: Sure.

17 BY MR. CLEARY: 18 19 Q. A. Okay. You can go ahead and recite it. It says, "Single and repeated oral doses of

20 phenytoin have been shown in laboratory studies to be 21 capable of causing cognitive and motor deficits in both 22 healthy volunteers and epileptic patients. However, the 23 scientific findings are not uniform in regard to this

24 conclusion, as some investigators have reported no 25 significant changes in their subjects and others have 43 1 observed slight improvements in performance. No studies 2 have yet involved examination of phenytoin's interaction 3 with other CNS depressants or its effect on actual 4 driving skills." 5 Q. That drug that you're just referring to is

6 also known as Dilantin; is that right? 7 8 A. Q. That's right. Okay. So the long and short of it is it can

9 impact cognitive and motor function but it doesn't do it 10 to everybody, is that right -11 12 A. Q. That's right. -- whether they're healthy or have some kind

13 of seizure disorder? 14 15 A. Q. Correct. Okay. Do you know if the bottles of Dilantin

16 that my client had contained any such warning? 17 A. No, I don't know, and I don't know what the

18 specific warnings are for the Tegretol, the Propranolol, 19 and the Dilantin would be -- I'd only ask that if you're 20 interested, you can go to the pharmacy and ask them to 21 print out the patient information sheet and then you can 22 check and see, and certainly I can do the same or 23 Mr. Zivitz can do the same. 24 25 Q. A. Okay. But most medications like this are labeled 44

1 pursuant to law and not because the pharmacies want or 2 don't want to do it. 3 4 5 Q. A. Q. Okay. It's based on statute here in Florida. Do some medicines contain the possibilities on

6 the patient information sheet but don't necessarily 7 specifically preclude it on the bottle? Has that been 8 your experience? 9 10 MR. ZIVITZ: Object to form. I don't understand your question, Scott.

11 BY MR. CLEARY: 12 Q. My question is, obviously you can't print

13 every single side effect on the side of a bottle; right? 14 15 A. Q. That's correct. Medications can contain the possibilities,

16 i.e. the possibility that this medication might affect 17 your cognitive and motor skills, but not necessarily 18 appear on the bottle? 19 A. I think that's -- that may be the case. I'm

20 not a pharmacy information expert, but in my experience, 21 drugs like benzodiazepines, for example, like Valium or 22 Xanax, that do have the potential for CNS depression, do 23 have those warnings I mentioned. So I'm thinking 24 that -- that these meds also have the same warning. 25 Even antihistamines now, like Zyrtec have the same 45 1 warning. 2 3 Q. A. Okay. So again, I think the best thing to do is just

4 go and check with the pharmacy.

5 6 7 8 9

MR. ZIVITZ: Something else we need to do, Scott. MR. CLEARY: Yeah. Off the record. (Discussion off the record.)

10 BY MR. CLEARY: 11 Q. Doctor, you are not an expert in human

12 factors, are you? 13 14 A. Q. No. Okay. And the long and short of it is you

15 were asked to address the possibility of whether or not 16 these medications somehow delayed Mr. Martinez' response 17 to the tractor-trailer violating his right-of-way; is 18 that right? 19 20 A. Q. More or less. Okay. And you would agree, would you not,

21 that your opinions offer possibilities but not 22 certainties about whether or not the medication did or 23 did not delay his reaction? 24 MR. ZIVITZ: Object to form.

25 BY MR. CLEARY: 46 1 2 Q. A. Do you understand the question, Doctor? I do. I just want to say that -- and I think

3 I said this before, is that I'm still left with the 4 impression of Mr. Martinez on the video, and I have to 5 think about what his baseline cognitive and psychomotor 6 impairment is and that's not induced by drugs, but also 7 the potential role of these drugs in adding to the

8 degree of impairment. 9 So I'd say that what we saw on the tape, if it

10 is comparable to the day of the crash, we have to try to 11 understand the impression, and the impression is it's 12 complex, but again, it's certainly due to his injury and 13 potentially due to the use of those medications in 14 slowing his response or his thought processes. 15 Q. Okay. Let me ask you this way. If you assume

16 that there was a delayed response by Mr. Martinez to 17 this hazard -- okay? 18 19 A. Q. Yes. Are you prepared today to testify within a

20 reasonable degree of toxicological certainty that that 21 delay was occasioned by his head injury, slash, drug 22 use? 23 A. Yes. And I'd say that's probably the best

24 that I could do, that it's a combination of factors 25 that -- it could be in, you know, more strong the head, 47 1 more strong the drugs. I can't say. 2 Q. Yeah, and I'm not asking you to apportion, but

3 you're reasonably certain that if there was, in fact, a 4 delayed response, the head injury, slash, use of this 5 medication is more likely than not the cause of that 6 delayed reaction; is that right? 7 A. Yeah, I don't like the term, "head injury,

8 slash, drugs," because I think that's mischaracterizing 9 my opinions. 10 Q. Okay. Well, I don't want to put words in your

11 mouth. I'm just trying to make it as simplistic as I

12 can. Why don't you use your own words. 13 A. I'd say we can't factor out the drugs in this

14 case but rather factor in the head injury, the drugs, or 15 a combination of the two. 16 Q. You are aware that there are other variables,

17 though, other than those two things to cause a person to 18 have a delay reaction? 19 A. Sure. And some of those may have been handled

20 by the reconstruction experts that day, or in your case. 21 Q. Okay. You don't have any opinions about who

22 caused the crash or respective fault on the part of each 23 party, do you? 24 A. No. That's not what I was asked to do, so I

25 didn't study that aspect of the case. 48 1 Q. Have you ever done any tests to address the

2 relative effects of this medication on actual subjects? 3 4 A. Q. No. Are you aware of whether or not there are any

5 driving license restrictions on Mr. Martinez' right to 6 operate a motor vehicle in the state of Florida? 7 8 9 10 11 12 13 14 A. I don't think there were any. MR. ZIVITZ: That doesn't mean there shouldn't have been. THE WITNESS: I didn't say that. MR. CLEARY: We're going to swear Eric after his next -MR. ZIVITZ: Please. MR. CLEARY: -- his next statement.

15 16

MR. ZIVITZ: Well, if your toxicologist could be a lawyer expert, I could be a lawyer expert.

17 BY MR. CLEARY: 18 Q. You are aware that there was no field sobriety

19 test performed on Mr. Martinez at the scene, aren't you? 20 A. Yeah, that's right. And I don't think he

21 would do well with a field sobriety exercise, even on 22 the day of his deposition. He had trouble with 23 Mr. Zivitz' questions. I didn't get to see him walk 24 around. I don't know if he walks with any deficits, but 25 mentally, he was impaired. 49 1 Q. And just so we're clear, you don't have any

2 information in any of the records to ascertain -- or 3 strike that -- to confirm that the demeanor that you 4 observed on the videotaped deposition represents this 5 guy's cognitive function and psychomotor skills on the 6 date of the accident, do you? 7 8 9 10 11 12 MR. ZIVITZ: Object to form. THE WITNESS: No, I don't, but there was no testimony to indicate that his cognitive function has declined since the crash. I know the alleged suit is not the head but it's the orthopedic injuries.

13 BY MR. CLEARY: 14 15 that. 16 Based upon your education, training and Q. Okay. You were also aware -- well, strike

17 experience, if a police officer says that automobile 18 accident that he's investigating with serious injury,

19 which I would -- you would agree this would constitute 20 that, wouldn't you? 21 22 A. Q. Yes. He has the authority to compel that blood be

23 drawn from one or both of the parties to this accident; 24 isn't that right? 25 A. That's my understanding of the law, although, 50 1 I guess from time to time that gets debated. 2 Q. Okay. Well, you are aware that no such

3 request was made by the investigating officer in this 4 case? 5 A. I really don't know, actually, but I'm

6 assuming there wasn't. 7 Q. Okay. And is there any evidence in any of the

8 depositions or any information that Mr. Zivitz conveyed 9 to you that indicates that anyone observed behavior 10 consistent with impairment? 11 12 MR. ZIVITZ: Sorry. There was an ambulance siren going off. We couldn't hear your question.

13 BY MR. CLEARY: 14 Q. The question is, I'm wondering, Doctor, if you

15 could point me to anything in the record, either medical 16 records, deposition testimony or even information that 17 Mr. Zivitz might have conveyed to you regarding the 18 record evidence that Mr. Martinez exhibited behavior 19 consistent with impairment. 20 21 A. Q. No, other than his baseline status. What is that?

22

A.

I mean, I'm sure at the hospital they knew

23 that he had a previous head injury and was affected by 24 that, mentally. 25 Q. How do you know that they reached that 51 1 conclusion? 2 A. Let me just look through the notes for a

3 second. 4 Well, they knew that he was disabled. I have

5 to admit that a lot of the medical records are difficult 6 to read. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CLEARY: I thought they gave you guys a course in -(Cell phone ringing.) MR. CLEARY: -- each other's chicken scratch. THE WITNESS: I type; I don't write. He did have a seizure after the crash, and -am I looking at the right notes? I think I am here. MR. ZIVITZ: Yeah, he did. THE WITNESS: So he had a seizure. Head trauma precaution. We know that Gomez was with him at the hospital because she went with him in the ambulance. History of -- I'm just trying to -- it's so hard to read. MR. ZIVITZ: Can we go off the record for a second to kind of assist, to speed things along? (Discussion off the record.)

52 1 2 3 4 5 6 7 8 9 10 11 MR. ZIVITZ: Back on the record. THE WITNESS: In the records there's evidence of a CAT scan of the head and the impression, diagnoses is status post extensive bilateral frontal and temporal parietal craniectomies and cranioplasties, so next statement was status post extensive old injuries to the frontal lobes bilaterally and the left temporal parietal lobes as described above. So it was obvious to them by that point that he had prior injury.

12 BY MR. CLEARY: 13 Q. Okay. Do you know if that prompted anybody to

14 avoid conducting some type of drug impairment 15 investigation? Is that right? 16 17 A. Q. I think so. I don't know. Doctor, you're not a neuropsychological

18 expert, are you? 19 20 A. Q. That's correct. And you don't diagnose injuries to the brain

21 or treat injuries to the brain? 22 23 24 that. 25 You have assumed that this particular 53 1 individual didn't suffer any head injury in this case; 2 it was all preexisting? A. Q. That's correct. And I think you have reached -- or strike

3 4

A. Q.

That's my understanding. Is that your understanding because my client

5 has chosen not to pursue damages for any aggravation of 6 his head injury or is there some kind of medical records 7 upon which you rely for that understanding? 8 A. Well, it's just what Mr. Zivitz told me, that

9 he was pursuing damages pursuant to the orthopedic 10 injuries and not the head injury. 11 12 13 14 MR. CLEARY: Okay. MR. ZIVITZ: I didn't go into it, you know, with what the medical evidence was. MR. CLEARY: Okay.

15 BY MR. CLEARY: 16 Q. So I guess what my question is is that if you

17 assume that there was some aggravation, albeit minor, 18 would that affect your opinions in any way? 19 20 MR. ZIVITZ: Object to form. Assumes facts not in evidence.

21 BY MR. CLEARY: 22 23 Q. A. Would that affect your opinions at all? I don't know. I haven't considered it. It

24 could, but I didn't see any mention of it in the -25 either depositions. 54 1 One thing that we missed was there was a drug

2 test ordered on Mr. Martinez but it was never run. 3 4 5 Q. A. Q. Okay. So they did order one. Who ordered it, the hospital or a police

6 officer? 7 8 A. Q. The hospital. Was it -- based upon your education, training

9 and experience, would that be more than likely because 10 of their concern for administering anesthesia and what 11 effect that might have on the drugs that he was taking 12 versus their investigation of a DUI? 13 14 A. Q. It would be the former, of course. Okay. Just so we're clear, and I think you

15 already addressed this, we don't know if Mr. Martinez 16 falls into that group that is experiencing the worst of 17 the side effects of this particular medication versus 18 someone that's achieved some level of tolerance and 19 really the effect upon him is negligible; is that right? 20 21 22 A. Q. Yes. I think I'm just about done. Well, Doctor, I think we've addressed every

23 fact that you probably considered, have we not? 24 25 A. Q. You have. Can you tell me what your opinions are if they 55 1 have not yet been addressed, your ultimate opinions you 2 reached in this case? 3 A. Well, the ultimate opinion is what I stated

4 early on in the day, which is dealing with the 5 impression of Mr. Martinez on deposition, that is, his 6 baseline cognitive impairment as well as the potential 7 for drug effects or impairment and how this plays in 8 relation to the opinions of the accident reconstruction 9 expert for Mr. Zivitz.

10

Q.

Okay. And you've already said that you don't

11 know what exactly those opinions are, other than what 12 Mr. Zivitz told you; is that right? 13 MR. ZIVITZ: Object to form.

14 BY MR. CLEARY: 15 16 17 Q. A. Q. Is that right, sir? Yes. You have not reviewed either reports or

18 deposition transcripts of that expert witness; is that 19 right? 20 21 A. Q. That's right. Okay. You've never examined Mr. Martinez.

22 You've only had the opportunity to review that 23 videotaped deposition; is that right? 24 25 A. Q. That's right. And you're not aware of any video of 56 1 Mr. Martinez that was taken shortly before the accident 2 that might shed some light on his cognitive function and 3 psychomotor performance as it existed on the date of the 4 accident; is that right? 5 6 A. Q. I'm not aware of one. And you would agree, would you not, that that

7 would be the ideal -- the ideal evidence for you to 8 review in order to get an idea of what his cognitive and 9 psychomotor performance was at or around the time the 10 accident occurred? 11 A. That and of course if there was the ability to

12 do a field sobriety exercise at the scene, which, of

13 course, there wasn't. 14 Q. Okay. Well, you would agree, would you not,

15 that even when there's severe accidents and injuries 16 that prevent the performance of a field sobriety test, 17 the police officers are entitled to make certain 18 observations and address their suspicions that somebody 19 is impaired from either drugs or alcohol? 20 A. Yeah, that's true, but first and foremost is

21 to get treatment to the individual who's injured, even 22 if they are impaired. 23 Q. Oh, I'm not suggesting that that isn't a

24 concern, but you would agree that just because someone 25 is not in the condition to perform a field sobriety 57 1 test, that doesn't prevent a police officer from 2 conducting an investigation about whether or not the 3 person was impaired? 4 5 A. Q. That's correct. I mean, we've had people -- I mean, I'm an old

6 public defender. People get prosecuted all the time 7 after they wake up from their comas, right, based upon 8 evidence that was collected at the scene and blood and 9 an officer's suspicions that somehow alcohol or drugs 10 caused or contributed to the accident. 11 12 A. Q. That's correct. And none of that happened in this case; isn't

13 that true? 14 15 16 you? A. Q. Correct. And you haven't seen the accident report, have

17 18

A. Q.

No, I haven't. It wouldn't surprise you that there's no

19 reference to any suspicion of alcohol or drugs causing 20 or contributing to this accident, would it? 21 22 MR. ZIVITZ: Object to form. Move to strike any reference to accident report.

23 BY MR. CLEARY: 24 Q. And I'm not waiving that accident report

25 privilege on behalf of either one of us, but you don't 58 1 know of any document that in any way indicates that, 2 other than, I guess, perhaps, the accident 3 reconstruction expert, that drugs somehow played a role 4 in causing or contributing to this accident? 5 6 A. Q. That's correct. And have we covered all the opinions that you

7 have reached in this case? 8 9 A. Q. Yes. And do you have any plans to do any additional

10 work in the case? 11 12 13 14 15 16 17 18 depo? MR. CLEARY: Yeah, other than that. MR. ZIVITZ: And Dr. Villanueva's depo? MR. CLEARY: Yeah. THE WITNESS: I'll probably try to get the patient information sheets, but maybe Mr. Zivitz can get those for me. MR. ZIVITZ: Other than to review Fogerty's

19 BY MR. CLEARY:

20

Q.

Okay. And I guess the other one thing that I

21 would like to put on the record is I'd like to -- I 22 don't need to attach all the documents. I think I 23 attached what I needed. I mean, we've covered and 24 identified as exhibits those specific documents that you 25 relied upon; isn't that right, Doctor? 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 now. MR. CLEARY: No. I have no further questions. A. That's right. MR. CLEARY: Okay. I just want to reserve the right to re-depose him in the event his opinions change or are supplemented by his review of any of those records. I mean, I don't anticipate that happening, but in the event it does, I'd like to have the opportunity just to inquire about how those documents changed your opinions. MR. ZIVITZ: I would assume, and I can't speak for Dr. Goldberger, nor would I even be willing to speak for him, but I would think, based upon what he's testified to and based upon what I know that Dr. Fogerty testified to and what Dr. Villanueva testified to, it would just further cement what he's told us today. MR. CLEARY: Okay. MR. ZIVITZ: And I'm going to ask him a few questions, just based upon hypotheticals of what these people said. MR. CLEARY: Okay. MR. ZIVITZ: Unless you have more questions

24 25 BY MR. ZIVITZ:

CROSS-EXAMINATION

60 1 Q. Doctor, just a few questions. I want you to

2 assume that Dr. Villanueva has testified, his treating 3 neurosurgeon for about six years following the ATV 4 accident of April 2001 and even saw him one time after 5 this accident, and I want you to assume that he's given 6 deposition testimony saying that based upon the 7 preexisting traumatic brain injury that Mr. Martinez had 8 back from April 2001, that there was no aggravation or 9 exacerbation of that injury as a result of this 10 accident. 11 Taking that assumption, I want you to further

12 assume that Dr. Fogerty, the defense's accident 13 reconstruction expert, will testify that, based upon his 14 reconstruction, Mr. Martinez had time, distance and 15 opportunity to avoid this accident, based upon whether 16 you use simple reaction time or complex reaction time, 17 and for whatever reason, which is why we have a 18 toxicologist, did not react in time. 19 Based upon those assumptions, would you have

20 an opinion, based upon what you've reviewed and your 21 education and experience, whether or not the traumatic 22 brain injury or the drugs that you referenced that he 23 took had a contributing factor that would account for 24 that slowed reaction time to this collision? 25 MR. CLEARY: Object to the form. 61

1 2

THE WITNESS: Yes. And again, it's one or the other or a combination of both.

3 BY MR. ZIVITZ: 4 5 Q. Thank you. And you could do that without knowing the

6 specific level of Tegretol or Dilantin or Zoloft or any 7 of the other CNS drugs? 8 9 A. Q. That's correct. Now, when you say CNS drugs, I just want the

10 judge, if he's going to read the transcript or if the 11 jury is going to be explained it, if for some reason you 12 can't testify at trial, what does CNS mean? Is that 13 central nervous system? 14 15 A. Q. That's correct. And the central nervous system encompasses the

16 brain and the spinal cord? 17 18 A. Q. That's correct. And those drugs affect the brain and the

19 spinal cord and motor function -20 21 22 23 24 25 A. Q. A. Q. A. Q. Yes. -- to one degree or another? Yes. Alcohol is a depressant? It is. And that slows a person's reaction time if 62 1 they're inebriated or over the .08? 2 3 A. Q. That's correct. And these drugs, while not related to .08 but

4 can have the same depressant effect, central nervous 5 system type drugs can have the same type of effect? 6 7 MR. CLEARY: Object to the form. THE WITNESS: Yes.

8 BY MR. ZIVITZ: 9 10 11 Q. A. Q. It would affect their normal faculties? Yes. Now, you can't tell us because you don't have

12 the -- you don't have the levels to say that, in fact, 13 on this date that did, in fact, affect his normal 14 faculties, but you can't eliminate it as a factor? 15 16 17 18 A. Q. A. Q. Correct. Am I hearing you right? Yes. Because you know he has the drugs, if you

19 assume his deposition testimony is accurate and what was 20 related to the emergency room personnel in the records, 21 that he took those medications that morning and you know 22 the approximate time he would have taken them. You know 23 the time of the accident and you also know the 24 presentation on the traumatic brain injury from the 25 deposition. It tells you enough information to render 63 1 an opinion, given what the assumption from Dr. Fogerty 2 would be, that he had time and distance to avoid the 3 accident, that the presentation in combination more 4 likely than not had an effect on his ability to react 5 appropriately to the stimulus in front of him. Am I 6 hearing this right? 7 A. Yes. Now, we do have drug levels from 2/21/06

8 in the record for Phenytoin and Tegretol. 9 10 Q. A. Where is that? Well, it's on this page here. It's on the

11 same page where it indicates they ordered a drug screen 12 but it wasn't done. 13 14 15 16 17 MR. CLEARY: Can we attach that as Plaintiff's Exhibit No. 4, please? MR. ZIVITZ: Well, when you're questioning him you can, but let me look at it first. We'll mark it.

18 BY MR. ZIVITZ: 19 20 Q. A. Is there a significance to these levels? Well, the phenytoin falls within the

21 therapeutic range and so does the -- the Tegretol. But 22 that's not a measure of what potential side effects may 23 exist. 24 Q. The literature, the potential side effects

25 have the dizziness, the slurred speech, the lack of 64 1 coordination, all those things that you previously 2 mentioned? 3 4 A. Q. Yes, if he's not tolerating these drugs well. And your bottom line opinion is that you

5 cannot eliminate within a reasonable degree of 6 toxicological probability that the drugs that he was 7 taking had some potential effect in a slowed reaction to 8 this accident? 9 A. Yes, that's exactly it, that it cannot be

10 ruled out as a potential factor in his baseline state at

11 the time of the accident. 12 Q. And that opinion is within a reasonable degree

13 of toxicological probability? 14 15 16 17 BY MR. CLEARY: 18 Q. I just had two questions. Number one is do A. Yes. MR. ZIVITZ: Thank you. That's all I have. REDIRECT EXAMINATION

19 you have any idea why just the Dilantin and Tegretol is 20 on that report and not the other four medications he was 21 on, or actually five? 22 A. Because the laboratory at the hospital can

23 only measure those two. 24 25 Q. A. Okay. So there's only tests available in the 65 1 hospital for the Tegretol and the Dilantin. 2 Q. Okay. And you had previously stated that the

3 levels were the normal prescribed levels; is that right? 4 A. Yes, for -- well, we say it's the desired

5 therapeutic concentration range. 6 Q. Okay. Desired therapeutic concentration

7 range. 8 9 10 MR. ZIVITZ: Scott, I forgot to ask him a question. Could I go back? MR. CLEARY: I just -- I have one last one.

11 BY MR. CLEARY: 12 Q. And you had already stated that in those

13 circumstances where there is evidence that the patient 14 was compliant that it really depends upon the patient as

15 to what effects the medication has on him; is that 16 right? It varies from person to person? 17 A. That's right. The concentration in the blood

18 is only one of the measures. Someone could still suffer 19 from ill effects of the drug, even if it's within the 20 therapeutic range. 21 22 Q. A. Sure. And that might be seizures; it might be side

23 effects. So in this case, he had an injury, a previous 24 brain injury known to the doctors. He had a seizure at 25 the hospital on these seizure medications, so it's 66 1 prudent to measure those drugs. 2 3 4 5 BY MR. ZIVITZ: 6 Q. What's going to be marked as the next MR. CLEARY: Okay. All right. Go ahead, Eric. I'm all set. RECROSS EXAMINATION

7 Plaintiff's Exhibit, that page 3 that shows the Dilantin 8 and Tegretol level -9 10 A. Q. It's page 4. I'm sorry. Exhibit 4. Notwithstanding the

11 therapeutic level, we know based upon those records he 12 had a seizure that day, didn't he? 13 14 15 16 17 A. Yes. MR. ZIVITZ: Thank you. That's all I have. MR. CLEARY: What was that last question? MR. ZIVITZ: He had a seizure that day, notwithstanding the therapeutic level of the

18 19 20 21

Dilantin and Tegretol. MR. CLEARY: Okay. And I just have one question in response to that. FURTHER EXAMINATION

22 BY MR. CLEARY: 23 Q. Doctor, you don't know if that seizure

24 occurred because of how much Dilantin and Tegretol he 25 was taking or whether or not it had something to do with 67 1 the injuries he suffered in this accident; is that 2 right? 3 4 A. Q. That's correct. Okay. I mean, when you have a seizure

5 disorder that's controlled with medication, trauma 6 certainly can spark a seizure, despite the fact that you 7 have the desired therapeutic concentration range of the 8 antiseizure drugs in your system? 9 MR. ZIVITZ: Object to form.

10 BY MR. CLEARY: 11 12 Q. A. Is that right? I mean, I would agree, but only based on my

13 lay knowledge and not based on any expertise. 14 Q. Okay. But, I mean, obviously a serious

15 accident and serious injuries can cause someone to have 16 a seizure disorder who's -- who's already had a history 17 of it because of the stress put on their body? 18 19 A. Yes. MR. ZIVITZ: Object to the form.

20 BY MR. CLEARY: 21 Q. Is that right?

22 23 24 25

A.

I mean, as -- my lay answer is yes. MR. CLEARY: Okay. I have no further

questions. MR. ZIVITZ: That's it. 68

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

MR. CLEARY: Read or waive? THE WITNESS: I'll waive. MR. CLEARY: Okay. (Deposition concluded at 3:00 p.m.)

25 69 1 2 3 STATE OF FLORIDA ) COUNTY OF ALACHUA ) 4 5 I, the undersigned authority, certify that CERTIFICATE OF OATH

6 BRUCE A. GOLDBERGER, Ph.D., personally appeared before 7 me and was duly sworn. 8 WITNESS my hand and official seal this 7th day of

9 April, 2008. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 1 C E R T I F I C A T E ____________________________ Janet M. Alex, Notary Public State of Florida at Large Commission #DD 586990 Expires: September 27, 2010

2 3 STATE OF FLORIDA ) COUNTY OF ALACHUA ) 4 5 I, Janet M. Alex, Court Reporter, certify that I

6 was authorized to and did stenographically report the 7 deposition of BRUCE A. GOLDBERGER, Ph.D.; that a review 8 of the transcript was not requested, and that the 9 transcript is a true and complete record of my 10 stenographic notes. 11 I further certify that I am not a relative,

12 employee, attorney, or counsel of any of the parties, 13 nor am I a relative or employee of any of the parties' 14 attorneys or counsel connected with the action, nor am I 15 financially interested in the action. 16 17 18 19 20 21 22 23 24 25 _____________________ Janet M. Alex Court Reporter DATED this 7th day of April, 2008.