00001

1 IN THE CIRCUIT COURT FOR THE

FOURTH JUDICIAL CIRCUIT AND

2 FOR NASSAU COUNTY, FLORIDA

3 ROBERT HOGAN,

Plaintiff,

4

vs. No. 06-CA-44

5

BAPTISTMEDICALCENTER -

6 NASSAU, INC., a Florida corporation,

Defendant and Third-Party Plaintiff,

7

vs.

8

AMERICAN CANCER SOCIETY and

9 GRAY GABLE, NASSAUVILLAGE

VOLUNTEER FIRE DEPARTMENT, INC.,

10 Third-Party Defendants.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

11

DISCOVERY DEPOSITION OF

12

ROBERT NORMAN HARDEN, M.D.

13

September 12, 2007

14 1:30 p.m.

15 446 East Ontario Street

Suite 1011

16 Chicago, Illinois

17 Stacee L. Jackson, CSR

18

19

20

21

22

23

24

25

00002

1 APPEARANCES:

2 .

3 Appeared on Behalf of the Plaintiff;

4 COKER, SCHICKEL, SORENSON & DANIEL

5 AARON SPRAGUE, ESQUIRE

6 135 East Bay Street

7 Jacksonville, Florida 32202

8 (904) 356-6071

9 .

10 Appeared on Behalf of the Defendant

11 And Third-Party Plaintiff

12 Via Speakerphone;

13 SAALFIELD, SHAD, JAY, LUCAS & STOKES, P.A.

14 CLEMENTE J. INCLAN, ESQUIRE

15 P.O. Box 41589

16 Jacksonville, Florida 32202

17 (904) 355-4401

18 .

19 .

20 .

21 .

22 .

23 .

24 .

25 .

00003

1 APPEARANCES CONTINUED:

2 .

3 Appeared on Behalf of the Third-party

4 Defendant American Cancer Society

5 Via Speakerphone;

6 FULMER, LEROY, ALBEE, BAWMANN & GLASS

7 THOMAS TOLLEFSEN, ESQUIRE

8 4720 Salisbury Road

9 Jacksonville, Florida32256

10 (904) 562-1020

11 .

12 Appeared on Behalf of the Third-party

13 Defendants Gray Gable and Nassau

14 Village Volunteer Fire Department, Inc.

15 QUINTAIROS, PRIETO, WOOD & BOYER, P.A.

16 TERESA A. ARNOLD-SIMMONS, ESQUIRE

17 One Independent Drive, Suite 1650

18 Jacksonville, Florida 32202

19 (904) 354-5500

20 .

21 .

22 .

23 .

24 .

25 .

00004

1 DISCOVERY DEPOSITION OF

2 ROBERT NORMAN HARDEN, M.D.

3 SEPTEMBER 12, 2007

4 THE COURT REPORTER: We're going to

5 swear in the witness, okay?

6 MR. INCLAN: Okay.

7 THE COURT REPORTER: Doctor, would

8 you please raise your right hand?

9 (WHEREUPON, the witness was duly

10 sworn.)

11 ROBERT NORMAN HARDEN, M.D., called

12 as a witness by the Plaintiff, having been

13 first duly sworn, was examined and testified

14 as follows:

15 EXAMINATION

16 BY-MR.SPRAGUE:

17 Q. Will you state your full name

18 please, Doctor?

19 A. Robert Norman Harden.

20 Q. Dr. Harden, what's your professional

21 address?

22 A. 345 East Superior Street, Chicago,

23 Illinois, 60611.

24 Q. What's located there?

25 A. The Rehabilitation Institute of

00005

1 Chicago.

2 Q. Okay. And that's not where we are

3 right now?

4 A. Correct. These are our satellite

5 offices of the same institution.

6 Q. You're an M.D.?

7 A. Yes, sir.

8 Q. What's your specialty?

9 A. Pain management.

10 Q. Okay. Are you -- do you hold

11 yourself out as a psychiatrist?

12 A. No, sir.

13 Q. Do you have a degree in psychiatry?

14 A. No, sir.

15 Q. Are you licensed to practice

16 psychiatry?

17 A. No, sir.

18 Q. Do you have a degree in psychology?

19 A. No.

20 Q. Do you hold yourself out as a

21 psychologist?

22 A. I practice psychology on a daily

23 basis at my practice. I don't -- I would

24 never say I am a psychiatrist, but I do

25 practice psychotherapy and psychology.

00006

1 Q. Okay. Are you licensed to practice

2 psychology?

3 A. Inasmuch as I'm a pain management

4 M.D., yes. I do not have a PhD, and I do

5 not have a degree in psychology, if that's

6 where you're headed.

7 Q. Okay. Does the State of Illinois

8 license psychologists?

9 A. Yes, sir.

10 Q. Do you have a license?

11 A. No, sir.

12 Q. Do you have a license to practice

13 psychology or psychiatry in any state?

14 A. No, sir.

15 Q. Now, I was looking at your CV,

16 Doctor, and it doesn't appear to me that you

17 are a member of any professional organizations

18 specifically related to psychiatry or

19 psychology. Is that right?

20 A. That's correct. Yes, sir.

21 Q. Or have you been?

22 A. No, sir. I don't think so.

23 Q. Okay. All right. Now, I want to

24 talk to you a little bit about your

25 professional practice. It looks to me like

00007

1 you're a man who wears many hats. Currently

2 you are the director for the Center of Pain

3 Studies. Is that correct?

4 A. Yes, sir.

5 Q. And an associate professor in

6 Physical Medicine and Rehabilitation. Is that

7 correct?

8 A. Yes, sir.

9 Q. And a lecturer for the Finch

10 University Health Services. Is that correct?

11 A. Yes, sir.

12 Q. You're also the clinical affairs

13 chair for the RSD -- is it the RSD

14 Association of America?

15 A. Yes, sir. Reflex Sympathetic

16 Dystrophy of America, yes, sir.

17 Q. What's your connection with the

18 International Association for the Study of

19 Pain?

20 A. I have been a member for many

21 years. I attend and lecture at their meetings

22 which are tri-annually -- I'm sorry -- every

23 third year. I guess that's not tri-annual.

24 It's every third year. I have served on

25 several different committees for them. I have

00008

1 organized and facilitated two scientific closed

2 workshops for them, one in regards to complex

3 regional pain syndrome and one in regards to

4 spinal cord injury, pain.

5 Q. Okay. And you've -- you have, in

6 fact, authored or edited a number of books and

7 articles. Is that right?

8 A. Yes, sir.

9 Q. Okay. Do you actually have a

10 medical practice where you see and treat

11 patients?

12 A. Yes, sir.

13 Q. In terms of percent how much of

14 your professional time do you spend actually

15 examining and treating your own patients?

16 A. Currently that's about 10 percent.

17 Q. Is it true, Doctor, that you only

18 see patients half a day each week?

19 A. It's actually more like a day. The

20 seeing of patients and the paperwork associated

21 with that takes me about a day every week.

22 Q. Now, the other 90 percent of your

23 time, that's spent doing all the other stuff

24 that you do; directing the pain center and

25 lecturing and teaching, all that stuff. Is

00009

1 that right?

2 A. Yes, sir, primarily research.

3 Q. Now, you were retained by an

4 attorney to act as an expert witness in this

5 case?

6 A. Yes, sir.

7 Q. How often have you done this type

8 of -- this type of expert consulting in the

9 past?

10 A. I've never been deposed as an

11 expert. I've reviewed charts in probably six

12 cases. This is the first time I've ever been

13 deposed as an expert.

14 Q. Okay. In those six cases how

15 often have you been retained by a plaintiff as

16 opposed to a defendant?

17 A. I think once by plaintiff and the

18 rest by defense.

19 Q. All right. Now, I've -- I see

20 that you brought with you your file materials?

21 A. Yes, sir.

22 Q. Is this the entirety of your file,

23 Doctor?

24 A. Yes, sir.

25 Q. Now, in reviewing these I see that

00010

1 you made notes on almost all of it, so we're

2 going to attach that whole stack as

3 Plaintiff's 1.

4 (WHEREUPON, the document was

5 marked Plaintiff's Exhibit-1 for identification

6 as of September 12, 2007.)

7 BY MR. SPRAGUE:

8 Q. Do you have -- have you generated

9 an invoice in this case?

10 A. Yes, sir, I have generated one.

11 Q. I didn't see that in the stack. Do

12 you have it with you?

13 A. No, I don't. It was actually an

14 E-invoice, so there wouldn't be a hard copy

15 record of that.

16 Q. Okay. Who -- how much have you

17 billed to this point?

18 A. Honestly I don't remember the

19 number.

20 Q. Okay. Then we're going to have to

21 get the invoice. Let's take a break and get

22 the invoice.

23 A. Okay.

24 (WHEREUPON, a recess was had, after

25 which the deposition was resumed as follows:)

00011

1 BY MR. SPRAGUE:

2 Q. I've been handed this invoice, and

3 it looks like you billed for seven hours at

4 450 an hour for a total of $3,150. Does

5 that sound right to you, Doctor?

6 (Indicating.)

7 A. Yes, sir, that's correct. That's

8 what it says.

9 Q. Now, that was as of August 8th. Is

10 that right?

11 A. Yes, sir.

12 Q. Have you put in any more time

13 since then?

14 A. Yes, sir.

15 Q. How much more time?

16 A. I don't actually know. I haven't

17 prepared an invoice for that, but I would say

18 it's -- likely it's the same amount of time.

19 Q. So another seven hours?

20 A. Yes, sir.

21 Q. So that would bring the total to

22 about $6,300?

23 A. Yes, sir.

24 Q. Okay. Are you billing for the

25 video deposition that will be taken later this

00012

1 evening for trial?

2 A. Yes, sir.

3 Q. How much are you billing for that?

4 A. I bill 650 for depositions or court

5 time or video deps or whatever.

6 Q. Okay.

7 A. 650 an hour.

8 Q. So that will be -- you know,

9 assuming we have another hour along there,

10 that will be another 650 to bring it up to

11 almost 7,000. Is that right?

12 A. Yes, sir.

13 Q. All right. Who retained you?

14 A. Ms. Arnold-Simmons.

15 Q. When were you retained?

16 A. Approximately two months ago; she

17 may have a specific date.

18 Q. Okay. What were you asked to do,

19 Doctor?

20 A. To review records and potentially

21 participate in depositions or court.

22 Q. Okay. What was the object of your

23 records review?

24 A. To look specifically as to the

25 question, does the plaintiff have complex

00013

1 regional pain syndrome?

2 Q. Okay. That was the question you

3 were asked to address?

4 A. Yes, sir.

5 Q. All right. Doctor, I want to talk

6 to you a little bit about RSD or complex

7 regional pain syndrome. And for the purpose

8 -- I realize that amongst scholars and

9 physicians there is some -- some fuzziness

10 about what this thing should be called, but

11 since everybody in the case so far is calling

12 this RSD, for purposes of what we're doing

13 today, let's just refer to it as RSD, okay,

14 Doctor?

15 A. That's -- that's performed in the

16 field as often as in legal circles.

17 Q. Okay.

18 A. The name complex regional pain

19 syndrome is preferred in the field, but

20 everybody mixes it up. So I'll be happy to

21 mix it up today, if you would like.

22 Q. Okay. So I just want to talk to

23 you about RSD in general first. Now, you

24 mentioned that you were the clinical affairs

25 chair of the Reflex Sympathetic Dystrophy

00014

1 Association of America. I was on their

2 website, and I found this in the fact section

3 of the website. And it's RSD Fact or

4 Fiction, and here we read that reflex

5 sympathetic dystrophy syndrome is a chronic

6 pain syndrome characterized by severe and

7 relentless pain. Would you agree with that

8 statement?

9 A. In a qualitative way; that's -- you

10 know, we have specific criteria for making the

11 diagnosis, but this advocacy group that you're

12 quoting now is certainly entitled to their

13 qualitative opinion. And I am in agreement

14 with that, yes.

15 Q. Okay. So you would agree that RSD

16 is characterized by severe and relentless pain?

17 A. Yes, sir. In fact, I would be

18 more attune to the specific criteria that says

19 that it is pain disproportionate to the lesion

20 that is known.

21 Q. Okay. I also find here that --

22 there's a note -- that minor injuries can

23 cause major problems. Would you agree,

24 Doctor, that minor -- relatively minor injuries

25 can lead to RSD?

00015

1 A. Yes, sir.

2 Q. I also see here that treatment may

3 include medication, physical therapy,

4 psychological support, sympathetic nerve blocks,

5 and possibly sympathectomy or a dorsal column

6 stimulator. Would you agree that those are

7 all reasonable treatment options for somebody

8 who has RSD?

9 A. Yes, sir.

10 Q. A dorsal column stimulator, is that

11 another name for a spinal cord stimulator?

12 A. Yes, sir.

13 Q. Moving smartly forward, I'm going

14 to attach these two documents as Exhibit 2.

15 I will just keep them over here by me till

16 the time comes.

17 (WHEREUPON, the document was marked

18 Plaintiff's Exhibit-2 for identification as of

19 September 12, 2007.)

20 BY MR. SPRAGUE:

21 Q. I note that you edited a book

22 entitled Complex Regional Pain Syndrome

23 Treatment Guidelines. I think you have that

24 with you today, Doctor.

25 A. Yes, sir.

00016

1 Q. I want to ask you a couple

2 questions about RSD that come from -- from

3 that. First, from the preface the author

4 writes there's an awful lot we leave out how

5 a productive member of society can become too

6 disabled to work or take care of her children.

7 And a little further down it notes the

8 potential disability of RSD and the losses

9 that accompany this horrific pain. Do you see

10 that, Doctor?

11 A. Yes, sir.

12 Q. Would you agree that the pain from

13 RSD can be disabling?

14 A. Yes, sir, it can.

15 Q. Would you agree that the pain from

16 RSD can render someone unable to work?

17 A. Yes, sir, it can.

18 Q. Can it render someone unable to

19 perform tasks of daily living such as taking

20 care of children or maintaining a household,

21 that type of thing?

22 A. Yes, sir, it can.

23 Q. Thank you. Would you agree that

24 -- would you agree that the pain from RSD and

25 the associated psychological impact can attend

00017

1 personal losses and losses of -- losses in the

2 realm of family, friends, and jobs?

3 A. Yes, sir.

4 MR. INCLAN: Form. I will just

5 say form when I object to the form of the

6 question, if that's okay.

7 BY MR. SPRAGUE:

8 Q. Now, I want to switch over to the

9 section entitled Introduction Diagnostic

10 Considerations.

11 A. Yes, sir.

12 Q. And that section was actually

13 authored by you in connection with Stephen

14 Bruehl. Is that correct?

15 A. Yes, sir.

16 Q. Now, you discuss in there two or

17 three different conferences that led to -- or

18 that have the aim of defining RSD and its

19 diagnostic criteria. But I want to talk to

20 you about the Orlando conference in 1994 first

21 of all. Do I understand you correctly that

22 in 1994 a group of researchers and doctors

23 came together in Orlando and set forth a set

24 of diagnostic criteria for RSD?

25 A. Yes, sir. And, in fact, they were

00018

1 the first to name it and call it complex

2 regional pain syndrome. That was one of the

3 -- one of the reasons for that conference was

4 to rename the disease and to develop a general

5 set of diagnostic criteria or a working

6 diagnostic set.

7 Q. Okay. And those diagnostic

8 criteria were adopted by the Committee for

9 Classification of Chronic Pain of the

10 International Association for the Study of

11 Pain?

12 A. Yes, sir.

13 Q. Now, those diagnostic criteria are

14 spelled out in Table 1 of this section that

15 we've been discussing on page .8, Doctor?

16 A. Yes, sir.

17 Q. And they are also the same criteria

18 that are found in the -- what is the RSD/CRPS

19 section of the RSD Association of America

20 website. Is that right?

21 MS. ARNOLD-SIMMONS: Well, you need

22 to show it to him if you're going to ask him

23 if it's on there.

24 THE WITNESS: I'm sorry. Is this

25 what you have highlighted here?

00019

1 BY MR. SPRAGUE:

2 Q. No, Doctor. What I have

3 highlighted is not --

4 A. Oh, this one here. I see, yes,

5 sir. Excuse me one second. Let me make

6 sure that is the same thing. Yeah, that's

7 the verbatim. You know, it's interesting,

8 though, that this writing -- this consultation

9 of what is in here is actually my writing.

10 I wrote that many years ago and now everybody

11 reproduces it, but the point is I took this

12 from the IASP Taxonomy which is not this

13 clear. They didn't have this, but I -- Dr.

14 Bruehl and I had sat down and we took all

15 the features of that, wrote this, and now that

16 has been basically promulgated many, many, many

17 times. As you see, now it's become the

18 standard.

19 Q. Okay. Now, looking at those four

20 criteria that you just said that you wrote --

21 A. Well, I'm sorry. Let me be clear.

22 This was what the Orlando group had done.

23 Q. Okay.

24 A. They just weren't real crystal

25 about it when they talked away. They let the

00020

1 IASP publish it and they were a little bit

2 vague in terms of their terminology. So we

3 sat down in a very structured way and pulled

4 from that. So I'm saying I wrote the words,

5 but I did not author the concept.

6 Q. Okay. I understand that, Doctor.

7 Sufficent to say these are your words?

8 A. Yes, my work reflecting that the --

9 Q. IASP consensus?

10 A. Correct, of the Orlando folks.

11 Q. And one is the presence of

12 initiating -- an initiating noxious event or a

13 cause of immobilization. Is that right,

14 Doctor?

15 A. Yes.

16 Q. And two is continuing pain,

17 allodynia, or hyperalgesia -- is that right --

18 A. Hyperalgesia.

19 Q. -- with which the pain is

20 disproportionate to the inciting event?

21 A. Yes, sir.

22 Q. Three is evidence at some point in

23 time of edemic, changes in skin, blood flow,

24 or abnormal sudomotor activity in the region

25 of the pain?

00021

1 A. Yes, sir.

2 Q. The fourth is the diagnosis is

3 excluded by the existence of conditions that

4 would otherwise account for the degree of pain

5 and dysfunction. Is that correct?

6 A. Yes, sir.

7 Q. What is meant by evidence at some

8 time? I'm trying to focus in on the words

9 "at some time." What are you -- what is the

10 criteria trying to communicate by using that

11 term in that third criteria?

12 A. Well, the intent was that

13 historically people could have evidence or

14 present evidence that they had these things,

15 or it could be at the time of the

16 examination. So historical is acceptable as

17 well as present signs and symptoms that are

18 told to the doctor at the time of the

19 diagnosis.

20 Q. Okay. So if I understand you

21 correctly, then patient comes into the doctor.

22 He may have some signs and symptoms. Doctor

23 looks through the records, finds other signs

24 and symptoms in the past. Those signs and

25 symptoms count towards the diagnosis of RSD

00022

1 under this criteria. Is that right?

2 A. Yes, sir.

3 Q. And that's what's meant by "at some

4 time"?

5 A. Yes, sir.

6 Q. Has the IASP -- the International

7 Association for the Study of Pain adopted any

8 diagnostic criteria that supersede the criteria

9 adopted after the 1994 Orlando conference?

10 A. The IASP sponsored a symposium that

11 was held in Budapest because they knew that

12 this was a very weak criteria that needed to

13 be fixed. They published this book, for

14 instance, so I don't know at exactly -- at

15 what level you say that the IASP has

16 superseded the previous work. They clearly

17 sponsored a think tank, sponsored a closed

18 workshop, and then published a book in regards

19 -- specifically in regards to the diagnosis.

20 So that would be the most -- the most recent

21 word from the IASP, I guess, would be this

22 volume here.

23 Q. Okay. I want to -- when was that

24 published?

25 A. It would be 2001.

00023

1 Q. 2001, okay. Doctor, this Complex

2 Regional Pain Syndrome Treatment Guidelines

3 that I've been discussing with you, this was

4 published in June 2006?

5 A. Yes, sir, sounds correct.

6 Q. So that was published after the