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